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Transport and the Environment Committee

3rd Report 2003

Report on Petition PE 377 by Michael Kayes on Polluting Activities in Built-Up Areas

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SP Paper 819

Session 1 (2003)

 

Remit and membership

Remit:

To consider and report on matters relating to transport which fall within the responsibility of the Minister for Enterprise, Transport and Lifelong Learning; matters relating to environment and natural heritage which fall within the responsibility of the Minister for Environment and Rural Development; and matters relating to the land use planning system and building standards which fall within the responsibility of the Minister for Social Justice. (As agreed by resolution of the Parliament on 13 June 2002)

Membership:

Bristow Muldoon (Convener)

Bruce Crawford

Robin Harper

Adam Ingram

Angus MacKay

Maureem Macmillan

Fiona McLeod

Des McNulty

Nora Radcliffe (Deputy Convener)

John Scott

Elaine Thomson

Committee Clerking Team:

Callum Thomson

Alastair Macfie

Roz Wheeler

Euan Donald

The Committee reports to the Parliament as follows-

Introduction

1. This report outlines work undertaken by Fiona McLeod MSP, and the Transport and the Environment Committee as a whole, on Petition PE377 on polluting activities in built up areas. The report reviews the written and oral evidence received by the Reporter and the Committee and reaches conclusions on a number of issues arising from the petition.

Background

2. The petition expresses concern at the potential impact on the health of residents of the East End of Glasgow of toxic dumping and cattle incineration. The petition requests that the Scottish Parliament carries out an urgent investigation into these practices.

3. One of the petitioner's primary concerns is the effect of airborne and water borne emissions from a cattle incinerator on the people living in the Carntyne area of Glasgow. The petition includes some background information regarding the specific problems which the petitioner indicates are being faced by residents at Carntyne. Further information regarding the petitioner's concerns can be found in oral evidence he gave to the Public Petitions Committee (PPC) in June 2001.

Progress of the petition

4. The petition was considered by the PPC at its meeting on 19 June 2001, at which time that Committee agreed to seek the views of SEPA on the issues raised in the petition, and on additional points raised by members. A response was received from SEPA, which was subsequently considered at a meeting of the Public Petitions Committee on 11 September 2001.

5. The PPC referred the petition to the Transport and the Environment Committee with the request that it responded to the wider planning issues arising from the petition.

6. Following the referral, local concern was expressed over the possibility that BSE-infected cattle may have been processed at the incinerator despite the operators not possessing the necessary licence for this type of incineration. In addition, concern was expressed that BSE-contaminated waste may have been discharged into the sewage system.

7. This Committee first considered the petition at its meeting on 6 June 2002. In recognition of the Committee's practice not to take a view on specific local planning issues, the Committee agreed to appoint a reporter, Fiona McLeod MSP, to examine broader questions relating to the application of the planning system and environmental regulations which arise from the petition.

8. The Committee also agreed that the Reporter should write to (1) the Minister for Social Justice and (2) the Minister for Environment and Rural Development in respect of some of the issues raised by the petition.

Terms of Reference

9. On 26 June 2002 the Committee approved terms of reference for the Reporter as follows:

The Reporter will report back to the Committee in respect of-

· the current guidelines on location of incinerators and whether there are any proposals to review the existing guidelines;

· the methods for disposal (incineration or otherwise) of material which may be BSE-infected;

· the level of information which is available regarding the number of BSE-infected cattle which are incinerated at individual operations in Scotland.

10. At its meeting on 26 June 2002, the Committee also agreed that an appropriate course of action for the Reporter would be to undertake a site visit of the operation at Carntyne and hold a meeting with SEPA officials to discuss areas of concern.

Work undertaken by the Reporter

11. On 23 August 2002, the Reporter met with SEPA officials in East Kilbride. The Reporter then visited the incinerator in Carntyne and met representatives of the owners, Sacone Environmental.

12. Following these meetings, the Reporter wrote letters to the Minister for Environment and Rural Development and the Deputy Minister for Social Justice regarding issues arising from their previous responses and the issues raised during meetings with SEPA and Sacone.

13. The Reporter also met with the petitioner, Michael Kayes, at his home in Carntyne on 7 October 2002.

Work undertaken by the Committee

14. The Committee considered a report from the Reporter at its meeting on 18 December 2002. The Committee agreed the report subject to specified changes and forwarded it to the Minister for Environment and Rural Development, the Deputy Minister for Social Justice, SEPA and CoSLA for their response.

15. The Committee considered the responses at its meeting on 18 February 2003. The Minister for Environment and Rural Development and the Deputy Minister for Social Justice produced a joint response which reflects the position of the Scottish Executive. CoSLA wrote to the Committee noting its practice not to take a view on local issues and therefore declining the opportunity to provide a full response. SEPA provided a full written responses.

16. At its meeting the Committee agreed to update the Reporter's report to incorporate relevant information from the responses and to outline any final conclusions reached by the Reporter on issues arising from the petition.

Issues raised by the petition

17. Members of the Committee wish to note that, during the course of their work on the petition, they have gained an appreciation of the dissatisfaction of local residents over the uncertainty surrounding the future operations use of the incinerator in Carntyne. The Committee recognises the real concerns of the residents in Carntyne.

18. The Committee's policy is to look at specific concerns raised by petitioners and examine whether these concerns are illustrative of wider problems with the planning and environmental regulation systems. The Committee believes that the experience of Carntyne highlights, in particular, three such issues:

· the role of planning authorities and SEPA;

· the current system for the disposal of BSE infected cattle; and

· the regulation of incinerators by SEPA.

19. These issues are explored further below.

Interface between planning authorities and SEPA

Environmental Impact Assessment (Scotland) Regulations 1999

20. One of the main concerns raised in the petition is the proximity of the incinerator to built-up areas at Carntyne. The incinerator is situated - in terms of the local authority's development plan - in a light industrial zone. The areas surrounding the zone are all residential. Glasgow City Council refused the initial planning application to locate the incinerator at Carntyne and the Scottish Executive overturned that decision on appeal.

21. A letter from the Reporter to the Minister for Social Justice dated 26 June 2002 requested information on the current planning guidelines relating to the location of incinerators. The response outlined the current planning guidelines relating to incinerators including the Environmental Impact Assessment (Scotland) Regulations 1999.

22. Depending on the capacity of the incinerator, and the nature of the waste being disposed of, the Regulations require either a mandatory Environmental Impact Assessment or a screening process undertaken by the local authority to establish whether or not an EIA is necessary (which involves consideration of the potential environmental impacts of the proposed development). Under the EIA Regulations 1999, animal remains incineration is included in Schedule 2 (screening required as to whether EIA necessary).

23. The Deputy Minister's response notes that these Regulations were not in place when planning permission was granted for the Carntyne incinerator and that the regulations that were in force at that time (the Environmental Assessment (Scotland) Regulations 1988) did not include provisions for animal carcasses/waste. Therefore, no screening process or EIA was carried out to consider the potential environmental impacts of the incinerator when the original planning application was made.

24. In her report, the Reporter expressed concern that those considering the application to locate an incinerator in a light industrial zone at Carntyne were not required to consider the specific environmental impacts of an animal carcass incinerator. The Reporter also expressed concerned that, prior to the 1999 Regulations, a similar situation may have arisen with other planning applications for animal carcass incinerators. In light of this concern, the Reporter recommended that a review be carried out on all planning permissions for animal carcass incinerators granted prior to the enforcement of the EIA Regulations 1999.

25. The Executive response notes that changes in planning regulations stem from Directive 97/11/EC which amended Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The response states that, as Directive 85/337/EC is not intended to apply retrospectively, the Executive does not see a basis for a review of planning permissions granted prior to the implementation of the EIA Regulations 1999.

26. The Committee notes the work undertaken by the Reporter in connection with this issue and accepts that Directive 85/337/EEC is not intended to apply retrospectively.

Enforcement of the EIA Regulations 1999

27. Under the present planning system, the local authority is responsible for enforcing the 1999 EIA Regulations, by carrying out an EIA or an in-depth assessment to gauge whether an EIA is required, for each incinerator planning application.

28. It is the role of SEPA to consider whether a proposed incinerator will have the appropriate technology to meet emissions standards for that source material and then to set site-specific licensing conditions prescribing that these standards are met. However, SEPA does not have any statutory power to withhold the granting of an operating licence where the proposed process uses technology appropriate to meet emissions standards for that source material.

29. Following the granting of planning permission, SEPA monitors substances released into the air from incinerators; the final discharge from sewage works (which process discharge from the incinerators) and the operating methods and equipment used during the incineration process.

30. The Reporter noted in her report that SEPA does not seem to have a suitable level of involvement in the local authority consideration of the environmental impact of proposed incinerators and yet is responsible for the regulation of the environmental impact of incinerators which are granted planning permission.

31. National Planning Policy Guideline 10 on Planning and Waste Management provides guidance as to the respective responsibilities of the local authority and SEPA. In connection with incinerators, NPPG 10 states that the role of the planning authority is to deal only with the matters that are material considerations and that the regulation of the incineration process is the responsibility of SEPA.

32. In enforcing the EIA Regulations 1999, it would appear to the Committee that local authorities are taking responsibility for certain matters within the planning application which are not purely material considerations but matters which would be more appropriately considered in conjunction with SEPA.

33. In her report, the Reporter recommended that SEPA should, because of its specific expertise in this area, have a greater involvement in considering the environmental impact of proposed incinerators including being given the statutory powers to become actively involved in the environmental impact assessment process.

34. The Executive response points out that under the 1999 Regulations, SEPA is a statutory consultee in relation to the environmental statement. SEPA must provide its views on what should be included in an environmental statement for each application and on the environmental statement itself. However, the response also notes that there is no statutory requirement to consult SEPA on whether an EIA should be required for a particular development.

35. The Executive's response states that SEPA is also a statutory consultee under the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 with regard to planning applications for the use of land for the treatment or disposal of trade waste. The response adds that SEPA played an important role in the consideration of the planning appeal into the Carntyne incinerator, noting that the Planning Reporter who considered the appeal stated:

"[SEPA] had not objected to the planning application and would only recommend refusal if it thought that its requirements could not be met, which is not the case here."1

36. The response from SEPA notes SEPA's statutory rights as outlined within the Executive response. The response also notes that there is no statutory requirement to consult the Health Board on any aspect of an EIA.

37. SEPA's response states that SEPA's contributions to planning applications, such as the application relating to the Carntyne plant, can only extend to issues which are material to land use planning. SEPA notes that this inability to comment on the planning implications of how a site may be regulated represents a major concern.

38. The response from SEPA also states:

"SEPA would welcome any change whereby planning and pollution control applications are submitted simultaneously, allowing better informed decision making, and harmonised applications of conditions and standards and enforcement".

39. The Committee considers that these comments confirm the validity of the Reporter's main conclusion in her initial report - that is to say that there is a lack of integration between the land use planning process and environmental regulation. The Executive also acknowledges that there are problems in this area, noting in its response that:

"A root cause of the problems that have arisen at Carntyne is the view that the plant may be located in an inappropriate location given the nature of the activity carried out and its proximity to an urban/residential area...there may be scope for better interaction between the land use planning and environmental protection consenting regimes....I recognise that the tendency is for the two processes to take place sequentially with SEPA considering the detailed environment protection implications of proposals for which land use consent has already been obtained from the planning authority.

It is, therefore, proposed that the Scottish Executive, in consultation with SEPA and other interested parties, will undertake a study to establish the scope for improving interaction between the statutory land use planning system and environment protection consenting regime. This will include considering the respective powers of the Executive, planning authorities and SEPA to assess the way in which they are working together." 2

40. The Committee welcomes the Executive's proposal to undertake a study on the integration of the land use planning process and environmental regulation. The Committee endorses SEPA's suggestion that the application to SEPA for licence authorisation should take place at the same time as the application to the planning authority for land use consent as an aid to this integration. The Committee recommends that the research proposed by the Executive should be carried out urgently so that, where appropriate, conclusions can be taken into account during the development of the expected planning bill in the next parliamentary session.

41. The Committee also recommends that SEPA should have a greater involvement in enforcing the EIA Regulations 1999. Specifically, the Committee recommends that the Executive should make it a statutory requirement for SEPA to be consulted as to whether an EIA is required for a particular development. The Committee also recommends that the Executive considers introducing a statutory requirement for local authorities to consult the Health Boards when assessing a planning application under the EIA Regulations 1999.

The disposal of BSE infected cattle

42. Local authorities are currently responsible for prescribing conditions in relation to the treatment of BSE infected cattle at animal carcass incinerators within planning permissions. For example, planning condition 6 for the incinerator at Carntyne states that "No special waste, clinical waste, remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone shall be burned at the plant".

43. Currently there is no requirement for SEPA to make provisions for the treatment of BSE infected cattle. The Environmental Protection (Prescribed Processes and Substances) Regulations 1991 (as amended) prescribes that SEPA must regulate "the destruction by burning in an incinerator of any waste, including animal remains", but does not specifically mention the incineration of BSE contaminated carcasses.

Testing of carcasses for BSE

44. The Reporter wrote to the Minister for Environment and Rural Development on 26 June 2002 requesting information on the current method adopted in Scotland for testing for BSE and the disposal of BSE infected cattle in Scotland. The Minister's response states that the disposal of BSE infected cattle in Scotland is by incineration and is controlled by the BSE monitoring scheme which is co-ordinated by the Rural Payments Agency (RPA).

45. The response states that all tests for BSE are undertaken on behalf of the RPA and that the tests specified by the European Commission take 10 to 14 days to generate a positive or negative result. The Minister's response states that storage of the carcasses at incinerators whilst awaiting their test results would require large refrigerated units. The Minister notes that it is the Executive's policy, for control and economic purposes, that rather than store carcasses and await test results, it is more efficient to incinerate the carcasses quickly.

46. Evidence given by Dorothy-Grace Elder MSP to the Committee on 18 December 2002 suggested that similar test results are processed in Germany and France within a few hours3. The Committee sought clarification from the Executive as to whether the test can be processed within a few hours elsewhere in Europe.

47. The Executive response claims that tests can take up to 14 days where initial tests are either inconclusive or positive but that straightforward negative tests are often processed within 24-48 hours. The response states that in terms of health and safety it is more efficient to incinerate carcasses as soon as possible. In response to the Committee's request for further information on the approach to testing of fallen stock elsewhere in Europe, the response states that the Executive's understanding is that similar timescales apply in the rest of Europe as apply in the UK.

48. Having considered the information provided by the Executive on this matter, the Committee is satisfied that the procedures that are in place do not pose a risk to public safety.

Safe working practices

49. In a letter dated 5 September 2002, the Minister for Environment and Rural Development noted that the system outlined above had resulted in 2 BSE infected cattle being burned at Carntyne, before the BSE tests for the cattle had been processed revealing positive results, between September 2001 and March 2002.

50. During the Committee's consideration of the initial Reporter's report on 18 December, members noted their concerns that incinerators such as Carntyne, which are burning BSE cattle but are not licensed to do so, may not be required to take the necessary precautions to protect members of staff from infection. The Committee agreed to seek assurances that working practices are sufficient to protect staff at all incinerators in Scotland which may be burning BSE infected cattle.

51. The Executive response notes that guidance on the health and safety of staff has been produced by a number of Departments including the Health and Safety Executive, the Advisory Committee on Dangerous Pathogens, the Spongiform Encephalopathy Advisory Committee (SEAC) and the Veterinary Laboratory Agency. The response details the role of the Rural Payments Agency (RPA) which provides written guidance and on-the-job training for staff on the handling of dead stock, the extraction of brainstem samples and safety advice on decontamination and waste disposal.

Precautionary principle

52. In the case of Carntyne, SEPA has adopted the precautionary principle meaning that it has set licensing conditions which dictate the operating methods in an attempt to ensure that any BSE prion is destroyed within the incineration process.

53. The Reporter welcomed the pragmatic approach adopted by SEPA in relation to Carntyne in her initial report and recommended that SEPA should assume that all animal carcass incinerators in Scotland may be burning BSE infected cattle and license and regulate incinerators on that basis.

54. The response from SEPA noted that Carntyne is the only incinerator which has a planning condition stating that it may not burn BSE infected cattle. The response noted that SEPA adopts the precautionary principle in its regulation of all cattle incinerators in Scotland.

Incineration temperature

55. One of the licensing conditions enforced by SEPA involves setting incinerator temperatures at a minimum of 850_C which, SEPA suggests, is sufficient to destroy the BSE prion.

56. At the Committee meeting on 18 December, members questioned whether the temperature of 850_C was sufficiently robust to destroy the BSE prion. The Committee agreed to request information from the Executive and SEPA on the basis for setting the temperature at this level.

57. The Executive response provides information on the findings of the Spongiform Encephalopathy Advisory Committee (SEAC), the principal source of advice to the UK government on transmissible spongiform encephalopathy. This Committee has concluded that incineration in dedicated incinerators which reached 850_C would be sufficient to ensure there was no risk from the BSE prion. SEPA's response supports the information provided within the Executive response.

58. SEPA's response confirms that SEPA uses the precautionary principle, meaning that it assumes there could be BSE contaminated carcasses present, and requires the operation of the plant to be adequate to destroy the prion.

59. On the basis of the information provided, the Committee is satisfied guidelines are in place in respect of (1) staff working practices and (2) the temperature level at which the incinerator operates to take account of the risk posed by the plant dealing with potentially BSE-infected cattle. The Committee supports SEPA in its use of the precautionary principle in monitoring the working practices of cattle incinerator operators.

The role of SEPA and planning conditions

60. The Reporter noted in her report that the current system for incinerating cattle prior to the receipt of BSE test results, at incinerators which are not licensed to burn BSE infected cattle, circumvents planning conditions. The Reporter suggested that, in her opinion, local authorities were not the appropriate bodies to enforce conditions in relation to BSE as these conditions are not material considerations of relevance specifically to planning. In addition, local authorities do not possess the infrastructure or the expertise to enforce such conditions.

61. The Reporter also suggested that there is little merit in setting a planning condition that the planning authority cannot enforce and which, in practice, SEPA enforces. The Reporter therefore recommended that SEPA should have a statutory role in the process for regulating BSE. Specifically, conditions regarding the incineration of BSE infected cattle should be licensing conditions prescribed and enforced by SEPA.

62. In relation to the planning condition for the Carntyne incinerator on the regulation of BSE, the Executive response notes that NPPG 10 indicates that the physical nature of the waste that is acceptable at a disposal plant is an issue which could be covered by planning conditions. The response notes that this guidance should be used in conjunction with the advice in Scottish Executive Development Department circular 4/1998 which states that conditions should relate to planning, and should be enforceable and reasonable in all other respects.

63. In relation to the recommendation that SEPA should have a statutory role in regulating BSE, the Executive does not believe that there would be any merit in giving SEPA any additional statutory role as this function falls under animal health policy, co-ordinated by UK agriculture departments and assisted by expert advice from the State Veterinary Service.

64. SEPA's response notes that the Carntyne incinerator is the only incinerator that has a planning condition relating to the burning of BSE infected carcasses. The response adds that it is worth reasserting the requirement for planning conditions to meets the tests set out in SEDD circular 4/1998.

65. Having considered the responses, the Committee wishes to reiterate that there is little merit in attaching planning conditions that cannot be enforced (see, for example, the comments attributed to the Head of Planning at the City of Glasgow Council in the European Parliament Petitions Committee report4 as well as the comments in SEPA's response (para 15))5. However, the Committee considers it vital that the Executive, within the study referred to above (para 39), considers the effectiveness of the current application of Circular 4/1998 by planning authorities.

66. The Executive response does not entirely address the Reporter's recommendation on making the role currently performed by SEPA in regulating the disposal of BSE infected cattle a statutory requirement rather than a voluntary use of the precautionary principle. The Executive response suggests that the monitoring of BSE infected cattle relates purely to animal health policy. The Committee maintains that the disposal of BSE infected carcasses can have an environmental impact, otherwise SEPA would not use the precautionary principle with regard to the BSE prion in its regulation of incinerators.

67. The Committee therefore supports the view conveyed by the Reporter in her initial report, that SEPA's current role in regulating the disposal of BSE infected cattle should be formalised to ensure that SEPA is required to continue to regulate cattle incineration on this basis. In addition, if responsibility for regulating this process lies firmly with the environmental regulator, it seems less likely that planning authorities would find cause to place conditions which cannot be enforced on cattle incinerators with regard to BSE in future.

Availability of information regarding BSE-infected cattle incineration

68. The RPA collates data on all cattle that have been incinerated and have tested positive for BSE. In its response to the Convener, SEPA noted that it had requested information from DEFRA and the Scottish Executive on the number of carcasses that have been incinerated at Carntyne and have tested positive for BSE. This request was refused and only the total number of carcasses tested in Scotland and, of those, the number confirmed with BSE was provided.

69. The Reporter wrote to the Minister for Environment and Rural Development on 26 June 2002 inquiring why specific information about Carntyne had not been made available to SEPA in its role as the environmental regulator. The Minister responded in July 2002 explaining that the RPA only collated information on the origin of the BSE, not the disposal point. However, as mentioned previously, the Minister provided specific information on the number of cattle incinerated at Carntyne in a letter dated 5 September 2002.

70. The Reporter wrote again to the Minister on 2 October 2002 asking why this information was only collated and made publicly available at this stage at the request of a Committee Reporter when the organisation responsible for the environmental regulation of the incinerator requested it some months ago. The Reporter also asked whether, following the release of this information, the Executive intended to have this information collated, provided to SEPA and made publicly available on a regular basis in the future.

71. The Minister replied on 18 October 2002 informing the Reporter that he would arrange for officials to provide the relevant information to SEPA for a period of six months after the incinerator at Carntyne recommences operations. The Minister added that he would not commit to providing the information on a permanent basis due to the amount of work involved in the exercise.

72. The Reporter noted in her report that she was unconvinced by the Minister's reasoning in this matter. The Reporter therefore recommended that the RPA should monitor the origin and the disposal point for BSE infected cattle and provide this information to SEPA on a regular and on-going basis.

73. The Executive response stated that this function is the responsibility of the State Veterinary Service. However, the response states that, should SEPA have an operational requirement for data on disposal points, the Minister for Environment and Rural Development would be prepared to consider such a request.

74. The response from SEPA welcomes the Committee's recommendation, stating that the test results would allow SEPA, for example, to assess whether the ash and extractive atmospheric emission sampling frequencies are adequate at each plant.

75. The Committee notes that the Minister's officials collated data on the incineration of BSE infected cattle for Carntyne from September 2001 to March 2002 within a period of just over a month. In addition, the Minister has previously stated that he would arrange for data on the disposal points in respect of the plant at Carntyne to be made available to SEPA for a period of six months following the recommencement of operations. It seems clear to the Committee that the provision of such information is within the Minister's jurisdiction.

76. Given SEPA's comments on the general desirability of having such information for all cattle incinerators, the Committee considers that there is clearly merit in making such information available as standard. The Committee therefore recommends that the Executive should broaden its position so that BSE data on disposal sites throughout Scotland is provided to SEPA.

The regulation of incinerators by SEPA

77. The Reporter noted in her report that, in order to prevent the production of BSE contaminated waste from incinerators, the current system relies on SEPA enforcing the precautionary principle within its licensing conditions and incinerator operators adhering to these conditions at all times.

78. Four enforcement notices have been issued by SEPA on the incinerator at Carntyne. SEPA wishes to emphasise that the fourth enforcement notice was only enforced due to a technical infringement and was imposed after the incinerator closed due to the third enforcement notice in March 2002. The incinerator re-opened earlier this year having complied with the third enforcement notice which was enforced when the incinerator exceeded emissions limits for particulates.

79. The Minister for Environment and Rural Development's letter to the Reporter dated July 2002, acknowledged the residents' concern regarding BSE contaminated waste. The Minister stated:

"I realise that residents will be concerned that the poor compliance record of the plant is reflected in a less than rigorous approach by the incinerator's operators to complying with conditions intended to ensure BSE risks are minimised. I share this concern. I would therefore expect regulators to take very seriously any incident that involved operating conditions potentially failing to meet the requirements intended to ensure the prion is destroyed."

80. The Reporter noted in her report that the Minister for Environment and Rural Development and that SEPA are both clearly dissatisfied with the incinerator operator's poor compliance record.

81. Representatives from SEPA have stated that ultimately the Minister has the power to direct SEPA in its actions. The Minister, in a letter dated 18 October 2002, stated that such powers of direction have never been used to intervene directly in SEPA's statutory functions, and that such action could cut across the policy interests of other areas of the Executive, setting an unwelcome precedent.

82. The Reporter recommended in her report that there should be consensus between the Executive and SEPA as to the exercise of their respective powers in situations such as that at Carntyne. The Reporter therefore urged the Executive and SEPA to liaise in order to adopt a common position.

83. Within the Executive response, the Minister states that the respective roles of the Scottish Executive as legislator and SEPA as enforcer of the regulations are clear and should remain separate as is consistent with SEPA's status as an Executive Non-Departmental Public Body. The response notes that although Ministers have the power to direct SEPA, these powers should be used in limited circumstances as SEPA's expertise and judgement allows it to deploy the powers available to it. However, the Minister notes that he would direct SEPA if he believed that SEPA's actions were creating a risk to public health.

84. The Executive's response notes that, if problems persist at the Carntyne plant, SEPA has the option to take further enforcement action, revoke an authorisation or recommend prosecution to the Procurator Fiscal. The response quotes from SEPA's enforcement policy to repetitive breaches of authorisation conditions:

"Persistent breach of licence conditions will not be tolerated. Required action may be phased in over a reasonable but binding timescale depending upon its importance to the environment and the attitude of the licence holder."

85. The Executive's response goes on to state:

"One such action perceived as `required' may be revocation, and the appropriateness of that particular action and timing of it, amongst a range of possibilities, would be considered by SEPA against the background to the particular circumstances under investigation."

86. In its response, SEPA states that responsibility for the day to day regulation of the plant lies with SEPA. SEPA also comments on its power to revoke an authorisation noting that SEPA must exercise this power in accordance with general administrative law principles including the Human Rights Act 1998. Effectively, the response suggests that, in order to revoke an authorisation, SEPA must be able to demonstrate that it is technically not possible to upgrade the plant to meet the standard required by the authorisation. The response adds that this is a difficult test to prove.

87. The Committee recognises the existence of differing roles of the legislator and regulator, leading to the arms-length relationship between the Executive and SEPA. Furthermore, the Committee notes the powers that lie with SEPA to take further enforcement action, revoke an authorisation or recommend prosecution to the Procurator Fiscal. The Committee notes that the Executive has powers to direct SEPA to exercise these powers.

88. On the one hand, the Executive and, to a lesser extent, SEPA give the impression that strong, statutory, enforcement powers are available to both bodies. However, the Committee notes that the responses of both bodies caveat how these powers can be exercised. The Committee is concerned by the equivocal message which is being sent out.

89. Faced with difficult cases, such as the incinerator at Carntyne, the Committee perceives that SEPA and the Executive act in a more cautious manner than may be justified by the scenario which has developed. On the basis that the correct legal interpretation is being placed on how the current enforcement powers should be exercised, the conclusion that the Committee draws is that the powers themselves may be too timid.

90. The Committee therefore recommends that the Executive should review the enforcement powers in respect of environmental protection legislation. In particular the Committee recommends that the Executive should examine (1) whether such powers need to be made more robust and (2) whether the chain of command between the Executive and SEPA in respect of the exercise of these power requires to be revised.

European Parliament Petitions Committee

91. Dorothy-Grace Elder MSP presented a petition to the European Parliament Petitions Committee raising similar issues to those highlighted within petition PE 377. In January 2003, a delegation of MEPs from the Petitions Committee visited the incinerator site and held meetings with interested parties including the Convener and the Reporter from the Transport and the Environment Committee.

92. The MEPs produced a report on the basis of the evidence gathered which concluded that the Carntyne Incinerator Plant should be closed as soon as a viable alternative site can be found. In addition, the report concluded that SEPA should be given additional powers and the consequent resources to allow it to be more closely involved in the planning process in the context of improved integration of planning and environmental regulations.

93. The report was considered and endorsed by the European Parliament Petitions Committee as a whole in January 2003 and then forwarded to the Scottish Executive in February 2003. The general recommendations held within the report are intended to inform the consideration of the situation in Carntyne at a Member State level, where the ultimate responsibility for the practical resolution of this issue lies.

Conclusions and Recommendations

Regulatory framework issues

94. The Committee considers that through the work of Fiona McLeod MSP as Reporter, and latterly by the Committee as a whole, a thorough examination has been carried out into the broad, regulatory issues that arise from Petition 377. The Committee is satisfied to note that, in several of these areas, headway has been made.

95. Firstly, the Minister for Environment and Rural Development has committed the Executive to undertaking research into the integration of land use planning process and environmental regulation. It is clear to the Committee that there needs to be a far greater level of interaction between the two processes. For example, the application to SEPA for licence authorisation should take place at the same time as the application to the planning authority for land use consent. The research is to be warmly welcomed, given that the common view is that the root problem of the situation at Carntyne is that an incinerator has been sited in an inappropriate location.

96. Secondly, given the situation that exists at Carntyne, the Committee welcomes the assurances that have been given by SEPA and the Executive as to the safeguards which have been put in place to mitigate the risks imposed by the plant dealing with BSE-infected carcasses. However, the Committee considers that the Executive should broaden its position by providing BSE data on disposal sites to SEPA and by formalising SEPA's role in the environmental regulation of the destruction of the BSE prion.

97. Thirdly, the Committee believes that the situation at Carntyne has revealed flaws in the exercise of enforcement powers in respect of environmental protection legislation. The Committee considers that the Executive should review this policy area. In particular the Committee recommends that the Executive should examine (1) whether such powers need to be made more robust and (2) whether the chain of command between the Executive and SEPA in respect of the exercise of these power requires to be revised.

98. The Committee's approach to its work on Petition PE 377 has been similar to the approach it has adopted in respect of other petitions, namely that it has examined particular complaints to see whether these are illustrative of more general areas for concern in the relevant statutory or regulatory framework.

99. Accordingly, the Committee considers that a positive response by the Executive to the Committee's recommendations allied to the actions already independently taken by the Executive would mean that the type of problems which have arisen at Carntyne could be avoided in the future.

100. The Committee is cogniscent however, that, in investigating broader issues, it has been difficult to avoid drawing conclusions on the specific situation of the incinerator at Carntyne given the basic incongruity of this type of incinerator being sited in an urban, residential area. The bottom line is that, welcome as Executive action on the issues raised above would be, that does not help the residents of Carntyne in their current situation.

The Carntyne incinerator

101. It is acknowledged by the Executive, SEPA, Glasgow City Council, local MSPs, the European Parliament Petitions Committee that it is unsatisfactory that a cattle incinerator was ever allowed to be located in a built-up area. On the basis of the evidence, this Committee shares this view. However, the Committee considers that this is now a matter of historical record and considers that the question residents of Carntyne will wish to see answered is: given that the incinerator is sited where it is, what can be done about the situation?

102. The Committee's approach to making recommendations has always been to ensure that recommendations for action are practical proposals for implementation and not aspirational in nature. In relation to Carntyne, therefore, the Committee has considered the options available within the existing planning and environmental regulatory regimes with a view to finding a permanent solution.

103. Firstly, there is the issue of planning consent. It is a matter for the planning authority (Glasgow City Council) to decide whether the apparent circumvention of planning condition 6 would merit the revocation of planning consent. Planning conditions 6 states-

"No special waste, clinical waste, remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone shall be burned at the plant"6

104. The Committee notes the comments attributed by the European Parliament Petitions Committee to the Head of Planning at Glasgow City Council:

"condition number 6 of the planning agreement would not stand a chance of being upheld in court because of the vagueness of the wording in legal terms"7

105. The Committee restates its general view that planning conditions should not be set which are incapable of being enforced. It is a matter for Glasgow City Council to decide how it wishes to pursue the apparent non-compliance with planning conditions in the case of the planning consent of the incinerator at Carntyne.

106. Secondly, there is the issue of licensing authorisation which is regulated by SEPA. As detailed in paragraphs 84 to 90 above, the Committee notes that SEPA has regulated the operation of the incinerator in an incremental way, whereby operations at the incinerator have ceased periodically as the operator has sought to comply with individual enforcement notices. SEPA's position is that revocation of the authorisation would only be possible if SEPA was able to demonstrate that the incineration process could not be operated within the conditions of the authorisation, effectively that it would have to be technically not possible for the plant to be upgraded in order for the authorisation to be revoked.

107. Furthermore, the Committee notes the assurances the Minister says that he has been given by SEPA over the stringency of the conditions that have been set for the operator in respect of ensuring necessary environmental conditions are met.

108. The Committee has previously concluded that, on the basis that the correct legal interpretation is being placed on how these enforcement powers should be exercised, the powers themselves may be to too timid. The Committee has recommended that the Executive should review this matter.

109. But given the situation at Carntyne must be addressed using the powers that are currently in operation, there has been some pressure on the Committee to recommend a more robust application of these existing powers. Notwithstanding the Committee's views on the inappropriate siting of the incinerator at Carntyne and the sympathy that the Committee has for local residents, the following question needs to be answered-

Is it appropriate to recommend to SEPA and, ultimately, the Executive, that the ongoing debate over the poor compliance record of the operators of the plant should be settled by the revocation of the operating license?

110. The Committee regards the assurances given to it by the Executive and SEPA as having been given in good faith. Recommendation of revocation of the licence authorisation would be at direct odds with these assurances. The Committee therefore believes that adopting such a position would leave the Committee open to valid criticism that it had been disingenuous in making a recommendation that was unsubstantiated by reliable evidence.

111. Fundamentally, the Committee considers that there is little prospect of the situation at Carntyne being satisfactorily resolved through reliance on the regulatory framework, whether this be planning consent or licensing authorisation.

112. Consequently, the only real prospect of finding a permanent solution seems to be one which is arrived at by consensus. The incinerator could be closed down if the operators of the plant were willing to do so. In the European Parliament Petitions Committee report it is stated that-

"the owners would be willing to relocate the plant in a more amenable and suitable location where the impact on the location would be negligible"8

113. While the Committee is encouraged by this apparent willingness to relocate, it should be stated that this type of action would, of course, require a new planning consent to be given in respect of the new site, wherever that may be. So, the Committee does not consider that the matter is straightforward - clearly this would need to be a negotiated solution.

114. The Committee considers that the momentum which the issue has gathered needs to be kept up. The Committee therefore recommends that the Executive should take the initiative and hold exploratory meetings with the operators, City of Glasgow Council, SEPA, local MSPs and local residents. The clear objective of these meetings should be to examine how, in the interests of the local residents and environmental justice, the result that, apparently, everyone wants - closure of the plant - can be achieved.

ANNEX A: EXTRACTS FROM THE MINUTES

TRANSPORT AND THE ENVIRONMENT COMMITTEE

EXTRACT FROM THE MINUTES

19th Meeting, 2002 (Session 1)

Thursday 6 June 2002

Present:

Robin Harper

Adam Ingram

Fiona McLeod

Maureen Macmillan

Des McNulty

Bristow Muldoon (Convener)

Nora Radcliffe (Deputy Convener)

John Scott

The following member also attended: Dorothy-Grace Elder.

The meeting opened at 10.07 am.

PE 377 by Mr Michael Kayes on polluting activities in built up areas. The Committee agreed to appoint Fiona McLeod as a reporter on the petition. The Committee also agreed to write to the Minister for Environment and Rural Development and the Minister for Social Justice on matters arising from the petition.

The meeting closed at 1.45 pm.

TRANSPORT AND THE ENVIRONMENT COMMITTEE

EXTRACT FROM THE MINUTES

22nd Meeting, 2002 (Session 1)

Wednesday 26 June 2002

Present:

Robin Harper

Fiona McLeod

Angus MacKay

Maureen Macmillan

Bristow Muldoon (Convener)

Nora Radcliffe (Deputy Convener)

John Scott

The following member also attended: George Reid.

Apologies were received from Adam Ingram and Des McNulty.

The meeting opened at 10.28 am.

Polluting Activities in Built-Up Areas: The Committee considered a reporter's paper on Petition PE 377 by Michael Kayes on polluting activities in built-up areas. The Committee agreed terms of reference and the course of action for the Reporter.

The meeting closed at 12.18 pm.

TRANSPORT AND THE ENVIRONMENT COMMITTEE

EXTRACT FROM THE MINUTES

36th Meeting, 2002 (Session 1)

Wednesday 18 December 2002

Present:

Bruce Crawford

Angus MacKay

Fiona McLeod

Nora Radcliffe (Deputy Convener)

Elaine Thomson

Robin Harper

Maureen Macmillan

Bristow Muldoon (Convener)

John Scott

Also present: Des McNulty (Deputy Minister for Social Justice) and Dorothy-Grace Elder.

The meeting opened at 9.38 am.

Petition PE 377: Polluting Activities in Built-up Areas: The Committee considered a reporters' paper on the petition. The Committee agreed the paper, subject to specified changes being made. The Committee agreed that the paper should be sent to the Minister for Environment and Rural Development, the Deputy Minister for Social Justice, COSLA, SEPA and copied to the Health and Community Care Committee

The meeting closed at 1.34 pm.

TRANSPORT AND THE ENVIRONMENT COMMITTEE

EXTRACT FROM THE MINUTES

4th Meeting, 2003 (Session 1)

Tuesday 18 February 2003

Present:

Bruce Crawford

Angus MacKay

Fiona McLeod

John Scott

Robin Harper

Maureen Macmillan

Bristow Muldoon (Convener)

Elaine Thomson

Also present :Dorothy-Grace Elder.

Apologies were received from Nora Radcliffe.

Petition PE 377: Polluting Activities in Built-up Areas: The Committee considered responses from the Scottish Executive, SEPA and CoSLA to a paper from the reporter on the petition. The Committee agreed to consider a draft report in private at its next meeting.

The meeting closed at 12.49 pm.

TRANSPORT AND THE ENVIRONMENT COMMITTEE

EXTRACT FROM THE MINUTES

5th Meeting, 2003 (Session 1)

Tuesday 4 March 2003

Present:

Bruce Crawford

Robin Harper

Maureen Macmillan

Bristow Muldoon (Convener)

John Scott

Helen Eadie (Committee Substitute)

Angus MacKay

Fiona McLeod

Nora Radcliffe (Deputy Convener)

Also present: Susan Deacon and Allan Wilson.

Apologies were received from Elaine Thomson.

The meeting opened at 9.32 am.

Petition PE 377: Polluting Activities in Built-up Areas (in private): The Committee considered a draft report on petition PE 377. The Committee agreed to the contents of the report subject to specified changes being made. The Committee also agreed to send a copy of its report to both the Minister for Environment and Rural Development and the Minister for Social Justice.

PE 377 by Michael Kayes on polluting activities in built-up areas. The Committee agreed to conclude its consideration of the petition by writing to the petitioner, outlining the work carried by the Committee and attaching a copy of the report.

The meeting closed at 12.57 pm.

ANNEX B: ORAL EVIDENCE AND ASSOCIATED WRITTEN EVIDENCE

6 June (19th Meeting, Session 1 (2002)) - Written Evidence

EXTRACT FROM THE PUBLIC PETITIONS COMMITTEE OFFICIAL REPORT - 19 JUNE 2001

The Convener: The next petition, PE377, from Michael Kayes, is on toxic dumping, cattle incineration and other polluting activities. I understand that Michael Kayes and Bill Malcolm are here to address the committee.

Michael Kayes: Thank you for having us here to speak on behalf of the people of the east end of Glasgow.

Three years ago, a cattle incinerator was opened in Carntyne. A cattle incinerator is out of place in a built-up area. At the time, we were assured that there would be no smoke or fallout from the incinerator but, as the pictures I have with me show, we had nothing but smoke and fallout for 18 months.

The Scottish Environment Protection Agency has let us down. I am here to ask the committee whether it can force SEPA to do something about the situation. I understand that the incinerator will reopen under new ownership in the near future. I do not see the new owners curing the problem. I live 50 yards from the incinerator and it is close to playing fields where more than 400 kids play football every weekend.

The photographs show how residential the area is. They also show new housing developments. I ask the committee to stop the plant from reopening until an investigation has been carried out into the problem as well as into dumping in the east end of Glasgow. I do not see why the incinerator problem should be allowed to add to the dumping problem.

Bill Malcolm: The Carntyne local plan was adopted in 1991 with the aim of controlling industrial development and eliminating local industrial pollution. It has singularly failed to do so. With the help of the Public Petitions Committee, the residents of the Carntyne community would like the planning permission refused retrospectively. The ground for that is that it is not an acceptable use of land that lies so close to public housing.

In an area of about 500m around the plant, there are two primary schools, a nursery, an old folk's home and 10 football pitches where, every Saturday and Sunday, 200 to 300 kids play. The previous owners, Westcot Hides, guaranteed that no smell, smoke or vile substances would come from the plant. They failed to ensure that. On 12 occasions that we know of, SEPA had to serve the company with enforcement notices to stop its operations.

The new operator, Sacone Industries, said that it would produce a new system of burning cattle. That system will process 200 cattle on seven days of the week, for 52 weeks of the year. Smells emanate from the plant when wagons containing 20 dead cattle that have lain there for a fortnight are opened. The smell rises into the atmosphere and surrounds the area completely. Sacone Industries has assured us that that will not happen, but we do not believe that, as the previous company also made that promise. The photographs that we have presented to the committee show smoke coming out of the chimneys. The plant is located in the area shown by the white square drawn on the photographs. The rest of the area is green fields or housing.

The Scottish Office allowed this situation to develop. Glasgow City Council planning department refused planning permission to Westcot Hides, but the Scottish Office granted permission on appeal, completely against the wishes of local people. In one day, we gathered two petitions of 1,000 names-the area has not one dissenter.

We ask members of the Public Petitions Committee to use the weight and power that the committee has been given by the people of Scotland to force the Intervention Board not to award the contract to Sacone Industries. At the moment, the company is repairing the plant in the hope that it will receive a contract at the end of this month. We do not want the plant to start up again. The last firm almost went bankrupt because it could not maintain guaranteed production due to stoppages. People do not want to have that happen again.

With the committee's assistance and its support of PE377, we hope that that will not come to pass. I thank the committee for giving us its attention.

The Convener: We do not have the power to interfere in the process of application for licences.

Bill Malcolm: It is support that we want.

The Convener: We have other powers that we can use to intervene in a situation such as the one that has been described. I repeat, however, that we cannot stop the lawful issue of licences.

Dorothy-Grace Elder: I declare an interest. I am one of the MSPs who works in the east end of Glasgow. Over some 25 years, I have been involved in places where dumping has occurred. The major problem in all dumping situations is SEPA's secrecy and the way that it works. I have dealt with quangos for many years and I have never encountered a more secretive quango than SEPA, which has been in existence only since 1996.

No consultation was held with local people in Carntyne before the licence was granted. Local people organised a recent public meeting, which SEPA attended. Its answers were evasive. The agency is not trusted in the local area. People are desperate to stop the plant starting up again, as all that SEPA will do is handle individual complaints. It will not reach to the root of the problem.

There is overdumping in the east end of Glasgow-the area is well worthy of special investigation by the Transport and the Environment Committee and of reference to the European Committee. We have at least five major dumping and/or incineration operations in the east end of Glasgow. Paterson's dump, which is very near Carntyne, takes in 500,000 tonnes of toxic waste material each year. The recent public health report on Paterson's dump noted that smells are at times literally breathtaking.

The emissions are already in the atmosphere. To add to that, the plant will again create a belching smoke plume that will distribute ash from dead cattle over the district, especially in summer weather. The smoke plume contains noxious fumes. Children in the area see terrible sights. At times, blood from the dead and half-decapitated animals that are being trucked into the plant runs down the gutters in one or two of the Carntyne streets. A built-up, residential area such as this is no place for such an operation. Such plants must be located well outside urban areas.

I am concerned about the health of the people of the east end of Glasgow. A Department of the Environment, Transport and the Regions probe is under way in London and links in parts of Glasgow. We have not yet seen the results of that probe and we have not been able to afford a full health inquiry in Glasgow. There are undoubtedly clusters of cancer and other diseases. It is not proven that they are linked to dumping, but their incidence is unusually high.

The East End of Glasgow has had quite enough problems without this plant being reopened. I appeal to the Convener to write a strong letter to SEPA asking it to justify why, in view of the plant's history, it granted the licence. Its feeble response is bound to be because planning permission was granted, but receiving planning permission does not mean that SEPA automatically has to grant a licence, particularly as permission was granted only after the application went to a Scottish Office reporter on appeal.

I ask the committee to word our communications as strongly as possible. I suggest that we pass PE377 to the Transport and the Environment Committee and to the European Committee. In view of the survey of dumping and other problems throughout the British Isles in which the Department of Health in London is a participant, I suggest that we write to that department.

The Convener: At this stage, we are meant to ask questions of the petitioners.

I welcome John Farquhar Munro to the committee. Do you have any questions at this point?

John Farquhar Munro (Ross, Skye and Inverness West) (LD): Not yet.

John Scott: Was there a difference in the level of smell throughout the summer and winter months?

Michael Kayes: No. The smell was continuous. Whenever a load of cattle arrived at the plant, the smell was present day and night. SEPA served the past operators with enforcement orders. That led to the Intervention Board taking the contract away from Westcot Hides, which went out of business. We had the smell of the smoke, winter and summer, day and night. I had burning ash on the roof of my house and cattle hairs on my car. For 18 months, we had those problems day and night.

John Scott: How close is the plant to the majority of the housing?

Michael Kayes: If members look at the photographs, they will see a drawing of a wee blue box. That is the incinerator. My house is in the area marked by the yellow box. I live in a caravan site that has 32 residential caravans for retired show people. The incinerator is only 50yd from the site. A 9in boundary wall is all that stands between the plant and the playing fields, where the kiddies play every weekend. Just 150yd from that are green fields and the Cardowan Road housing. On the other side we have Old Shettleston Road housing and the new housing development. The plant is out of place. It is smack in the middle of 10,000 to 20,000 houses. That small industrial area should not be in that location.

John Scott: I was going to ask what the direction of the prevailing wind is, but that is irrelevant because the plant is surrounded by housing.

Bill Malcolm: The prevailing wind in Glasgow is south-westerly.

John Scott: There is no orientation on the map, but it does not matter: there are houses in every direction.

Michael Kayes: Also, we are in a valley. The plume goes up and falls down where we are, which is between Edinburgh Road and Tollcross. It has nowhere to go, bar on the people.

The Convener: Why are cattle being incinerated in the middle of a city?

Michael Kayes: The previous owner of the site was a hide company. When cattle that were older than 30 months had to be got rid of because of BSE, there was a market for the incinerator, although the planning application says that no BSE cattle are to be burnt at that incinerator. Starting next month, all cattle that go to an incinerator must be decapitated, have a brain-stem sample taken and have the spinal cord taken out. That must be done to all cattle, not just BSE-infected cattle. While testing is being carried out, Daisy-as I call the cattle-will have gone through the incinerator and up the chimney. However, when-10 to 14 days later-the results come back that Daisy had BSE, it will not be possible to find her, because she will have been incinerated within 24 to 72 hours. The company will be burning BSE-infected cattle without our knowing-and we will never know-despite the fact that the planning application does not allow it to burn BSE-infected cattle.

Dorothy-Grace Elder: You were concerned about the heat of the furnaces.

Michael Kayes: The furnaces cannot burn hot enough. We have an independent report that says the furnaces are not designed to burn BSE-infected cattle. I am led to believe that the furnaces burn at 850 deg C. To get rid of the BSE agent, they have to burn at 1450 deg C, but the furnaces are not designed to do that. The ash, smoke and smell are not healthy.

Dorothy-Grace Elder: Can you confirm that at a public meeting the new owner of the incinerator, Mr Batty, stated that 850 deg C is as high as the furnaces can go?

Michael Kayes: That is right. I asked him about that. I also put it to him that the incinerator would be burning BSE-infected cattle. He could not confirm that he would not be burning such cattle, because the test results would be received after the cattle had been burnt.

Dorothy-Grace Elder: That moves us into an emergency situation.

The Convener: Are there any other questions for the petitioners?

John Farquhar Munro: Before the incineration of cattle started, were there objections about the emissions from the stack as a result of the previous activity at the site?

Bill Malcolm: There was no stack then. A tanning operation was on the site, from which there was an offensive smell. It was defined as an offensive trade, but that definition has been removed from legislation. No business is called an offensive trade now, but there is still an offensive smell. In the old days, when cattle were taken in and the hides were treated to make leather, there was a strong smell, but that was in the past.

For the environment and the health of people, such places should not be in areas with a lot of housing. A foundry and Parkhead forge, which was a massive employer of 30,000 people, have been closed down. All industry has been taken out of the area and only social activities take place there. However, the incinerator was allowed because, three years ago, the Government was under a lot of pressure to get rid of dead cattle. There are still 4.5 million cattle lying around somewhere that have to be destroyed.

John Farquhar Munro: Looking at the issue objectively, it is absurd that the local authority and a public agency such as SEPA should approve an exercise such as this in such close proximity to public buildings and schools and in such an intensely built-up housing area.

Bill Malcolm: Unfortunately, the wee strip of land on which the incinerator is found, which is about half a mile wide, is designated as an industrial area because it is alongside the railway line. It is meant for light factories, such as sewing machine factories or the Carntyne knitwear factory, which are no problem. The cattle come from the Borders in refrigerated trucks and must go through the whole of Glasgow. They should be dealt with out in the countryside.

John Farquhar Munro: Although the area is classified as industrial, it is absurd to apply the designation of industrial to the function of the incinerator.

Bill Malcolm: The planning permission says that it is an industrial area, but we say that a cattle incinerator is a wrongful use of the industrial area.

John Scott: How many jobs are involved?

Bill Malcolm: Six to 10, so the managing director tells us. Two or three men will operate fork-lift trucks to put cows on to a conveyor and into the furnace and there will be a few office people. The previous firm had about 15 employees. The new owner reckons that, given the company's equipment, the number of jobs will be 10 to 20 at most. Shettleston does not need 10 jobs; it needs 10,000 jobs.

The Convener: If there are no other questions, I thank you for your evidence. We will now consider what to do with the petition. You are welcome to stay and listen to the discussion.

We must stress that we cannot interfere in the application process for licences, but we can take up the issue with SEPA. It is suggested, as Dorothy-Grace Elder said, that we ask SEPA to respond to the points that have been made in the petition and in the discussion this morning and to outline its policies and procedures for granting licences to toxic dumps and incinerators in urban areas. While we await a reply, we will send a copy of the petition to the Transport and the Environment Committee for its information. We will pass on whatever we receive from SEPA to the Transport and the Environment Committee in due course. Is that agreed?

John Scott: I agree. As Dorothy-Grace Elder, the petitioners and John Farquhar Munro have said, it is unacceptable in this day and age to have such a plant in the middle of a residential area. New planning guidelines may have to be developed for the siting of incinerators. It is logical that they should be sited in areas where the prevailing wind will blow away unpleasant smells and potentially dangerous ash.

With regard to BSE, perhaps I am in a position to put the petitioners' minds at rest. Any cattle that are known to have BSE would not be sent to that plant.

Bill Malcolm: That is correct.

John Scott: However-and I have raised this issue with the Scottish Executive with regard to foot-and-mouth-it may be that a few cattle of more than five years old that are infected with the BSE agent are being burnt at that plant and on funeral pyres and are depositing BSE-infected material all over the country. Nonetheless, I have been reassured by the Executive that the incidence of such animals is low.

Dorothy-Grace Elder: Could we ask John Scott, as a farmer, where 200 cattle a week are coming from? They are called fallen animals. That puzzles me.

The Convener: We should ask SEPA, rather than John Scott. He is not responsible for answering such questions.

Dorothy-Grace Elder: Could we also ask about the lack of public consultation?

The Convener: Absolutely. The Official Report of this meeting will be sent to SEPA, which should be asked to respond not just to what the petition says, but to the points that have been raised in discussion.

Michael Kayes: May I make one more point?

The Convener: Technically, you cannot, but I will allow it.

Michael Kayes: John Scott said that the cattle would not have BSE. Mr Norman Batty said that all the cattle that go the incinerator are checked by vets. If that is the case, why do they have to take the heads off the cattle and send them for testing?

The Convener: That is a fair point, which was also made in the back-up literature.

Helen Eadie: Like other committee members, I share the concerns that the petitioners have expressed. Not only is there an important issue about national planning policy guidelines, there is the issue of the growth in the number of incineration plants. I can remember the case of the Bonnybridge incinerator, in which Alex Falconer, our MEP at the time, was involved. You will remember that case, convener, and the concerns that were expressed throughout Scotland.

My concern is that health and safety legislation includes powers of prohibition in certain cases, but it does not include powers of prescription. It is a matter of the filters that ought to be installed when the flues are put in place. From the Westfield inquiry when an incineration plant was proposed there, I understand that research from America stated that certain dioxins get into the atmosphere because appropriate filtration is not put into plants. I would like an approach to be made to the Secretary of State for Environment, Food and Rural Affairs in London to ask whether changes will be made in legislation so that there are powers of prescription as opposed to powers of prohibition. That must be considered not only on this aspect of health and safety, but in the wider context.

The other point that I would like to make is that the Royal Commission on Environmental Pollution is in the throes of setting up a remit for an inquiry into the effects of chemicals in the environment. It might be worth your while to visit its website, as you might want to make representations to it. Organisations and communities throughout Scotland that are concerned about chemicals in the environment ought to be preparing evidence to submit to that inquiry. It is important that we tune into the work that is going on in London.

The Convener: It has been suggested that when we write to SEPA we ask it, in addition to all the other points that I have mentioned, to explain the current position in the health and safety legislation and any changes that are in the pipeline, so that we can consider that as part of further consideration of the petition. Would that be satisfactory?

Members indicated agreement.

Dorothy-Grace Elder: I have a tiny correction to what John Farquhar Munro said. He said that both SEPA and the local authority were in favour of planning permission being granted. Unusually for Glasgow City Council, it did not grant permission. That is why the matter had to go to a fight. How many more voices will it take before they are listened to? The folk in the east end are not being listened to.

The Convener: It is important to emphasise that the opening of the incineration plant was against the advice of Glasgow City Council.

Is the action agreed?

Members indicated agreement.

EXTRACT FROM THE PUBLIC PETITIONS COMMITTEE OFFICIAL REPORT - 11 SEPTEMBER 2001

The Convener: The next petition, from Mr Michael Kayes, concerns toxic dumping, cattle incineration and other pollution activities in built-up areas, with particular reference to the dumping and other disposals that are currently taking place in the east end of Glasgow. At our meeting on June 19, we agreed to ask the Scottish Environment Protection Agency to respond to the issues and to additional points that had been raised by members. A copy of the petition was also passed to the Transport and the Environment Committee for information. We have received a response from SEPA, which is detailed in the committee papers. SEPA appears to regard the matter as a planning issue, rather than an environmental one, and therefore a matter for the local authority to decide. However, if the local authority has decided against the activities of that unit and it was only on appeal to the Scottish Executive that the unit was allowed to operate, there are certain national implications.

SEPA believes that the company is operating within the parameters of the licence that was granted and that several of the issues that were raised by the petitioner are planning issues. Glasgow City Council refused the initial planning application, but the Scottish Executive overturned that decision on appeal. As the committee cannot become involved in individual planning decisions such as this, we could agree to take no further action. Alternatively, we could refer the petition to the Transport and the Environment Committee with a view to asking it to consider the wider issues involved in current planning legislation. There seem to be national implications arising from the Glasgow situation, given that the local authority's decision was overturned.

Helen Eadie: The petition should be sent to the Transport and the Environment Committee. You are right to say that this is a national issue and that similar things have happened throughout Scotland. When I was a member of the Transport and the Environment Committee, the issue came up time and again and it was thought that the committee would, at some stage, conduct an inquiry into the matter.

Dorothy-Grace Elder: I declare an interest, as Mr Kayes lives in my constituency area and I have been doing work on the matter of the cattle burner for several months. Margaret Curran, who is the MSP for Baillieston, and I agree that the incinerator should not be allowed to start up again-it is not operating at the moment.

The cattle incinerator in the east end of Glasgow is the only such facility to be in a built-up area. It is next to two schools, playing fields that are used by 400 children, many houses, two caravan parks and a hospital. It operated under a different owner until September last year, when conditions for the local people got so bad that it was forced to close-it had also lost an Intervention Board contract. It now has a new owner and is due to reopen soon as part of the BSE surveillance scheme. However, the burner is not licensed to take cattle that have been proven to have BSE. The burner's top temperature is only 850 deg C and the facility does not have enough refrigeration to store the animals.

I suggest that we send the Executive an urgent letter. Only to some extent is this a planning issue. It is a shame for Glasgow City Council which, four years ago, before the burning of any BSE-infected cattle was proposed, decided that the area should not have the incinerator and turned down a planning application. However, that decision was overturned by a Scottish Office reporter. The report that was produced stated that no animal that had been proven to be suffering from BSE should be burned at the plant. However, the words in that clause can be played with, as the cattle that arrive have not been clinically proven to have BSE. We have seen Government documentation from England and Scotland that says that there is a high risk of the cattle that are involved in the BSE surveillance scheme having BSE. Those cattle are the fallen stock that the European Union wants us to investigate in an attempt to find out how small or large the incidence of BSE is in British herds. That means that the people of the east end of Glasgow will have to suffer as a result of a European statistic-gathering exercise.

The last time the burner was in operation, the situation was horrendous. The plumes of black smoke from this virtual crematorium were going 150ft into the air. Singed cattle hair was falling on gardens, prams and children's toys all over the area. At times, blood was running down the streets approaching the incinerator as cattle trucks arrived with dead cows. That is unlikely to be prevented this time, as refrigerated transport is not being used.

I will go into the grisly details as people in the east end of Glasgow will have to live through this horror story. The results of the test for BSE-which involves the head of the animal being removed-do not come back for 14 days. The rules say that the carcases must be incinerated within 72 hours. We will not know until afterwards whether a BSE cow has already been incinerated, and that would break the planning requirement, but retrospectively. This is complicated.

Glasgow City Council still does not want the plant. It never wanted it in the first place. The east end people, who have protested in their hundreds over another local pollution issue, do not want it and say that they will barricade the entrance to the plant if it reopens. Those are not idle threats-they have done it before at another local polluter, and 100 police had to be called to attend one street. I do not want that to happen month after month, and we cannot afford for the people in the east end to suffer any more risk to their health.

The constituencies concerned are the two unhealthiest in the whole of Britain. The site borders on Shettleston, which is the unhealthiest constituency, and goes into Baillieston, one of the next unhealthiest. What is proposed to be perpetrated is an absolute outrage, simply because it is a burner in that built-up area. I am not complaining about the BSE surveillance scheme, and realise why it has to be carried out, but it is absolutely essential that the cows are removed to another plant that is not located in a built-up area-and there are other plants in Scotland.

I appeal to the Executive through you, convener. I would like a letter to be sent, asking for an immediate investigation into where else those cows could be sent. Ministers have held off signing the contracts, I believe because we all started protesting in early July. My main plea has been to hold off signing the contracts to avoid getting into a legal situation later.

SEPA has claimed that it helps with meetings and has been open. It was certainly not open at the public meeting that I attended. A senior representative of SEPA was on the platform, and it was declared that the burner's reopening had absolutely nothing to do with BSE or BSE cattle. We then found conclusively that it was to do with the BSE surveillance scheme.

The Convener: I have tremendous sympathy with everything that you have said, Dorothy-Grace, and the set of circumstances that you have described in the east end of Glasgow is quite horrific. Unfortunately we, as the Public Petitions Committee, cannot get involved in individual cases. The issues can be raised with Glasgow city councillors and local MSPs and MPs.

We are restricted to considering the national implications that arise from the situation, and to referring the petition to the Transport and the Environment Committee, asking it to consider the wider issues. Even that committee would not be able to get involved in every aspect. If we were to get involved in one individual case, the list would become endless, and the Parliament would just spend its days dealing with individual cases that locally elected people could deal with. I am sure that you have the support of every individual on the committee but, as the Public Petitions Committee, we are restricted to considering the wider implications and referring the petition to the Transport and the Environment Committee and asking it to do the same.

Dorothy-Grace Elder: Could we write a letter to Mr Finnie?

The Convener: If you organised a round-robin letter, I am sure that everybody would support it. We could not write such a letter as a committee. It is not the role of this committee to become involved in issues of this nature. There are locally elected people who may deal with it.

Dorothy-Grace Elder: In that letter, could we say that we are members of the Public Petitions Committee?

The Convener: You can say what you like as an individual, as long as it is not that the letter is from the committee.

Is it agreed to pass the petition to the Transport and the Environment Committee?

Members indicated agreement.

LETTER FROM THE CONVENER TO SEPA

14 May 2002

I understand that you have previously written to the Public Petitions Committee on the subject of the incinerator at Carntyne which was the subject of Petition 377. I am writing to seek SEPA's comments on several matters relating to this subject which have been recently been raised by Dorothy-Grace Elder MSP.

While the Committee does not consider individual cases in themselves, it has a record of looking into such matters in so far as they highlight wider problems with regulatory frameworks - see for example the Committee's recent report on the spreading of waste at Blairingone and Saline.

I understand that the operators of the incinerator are not licensed to process BSE-infected cattle but that permission does exist for the incineration of fallen cattle.

It has been alleged that there is the possibility that some of these cattle are BSE-infected. I understand that tests are carried out but that by the time the results of these tests have been received, incineration has already taken place. The implication is that licensing conditions may be being circumvented where positive tests are recorded, in that the cattle have already been incinerated at a plant which does not possess the necessary license.

I should be grateful for your comments on this matter.

You may also be aware that there is concern among local residents about the alleged prospect of waste (including the possibility of BSE-contaminated waste) from the incinerator being discharged into the sewage system. I understand that it is a matter for Scottish Water as to whether consent for such discharge is granted but I should be grateful to receive SEPA's views on this matter.

I should like the Committee to consider the petition and the associated issues at its meeting on 5 June. To this end I should be grateful if you would respond by 29 May. I understand that this is a relatively tight timescale but would appreciate your assistance in order that the Committee can deal with this matter promptly.

I should be grateful if you would copy your response to the clerk to the Committee, Callum Thomson (e-mail:callum.thomson@scottish.parliament.uk).

Copies of this letter go to Dorothy Grace Elder MSP and Margaret Curran MSP.

Bristow Muldoon MSP

Convener

LETTER FROM SEPA TO THE CONVENER

23 May 2002

Carntyne Incinerator

Thank you for your letter of 14th May 2002 regarding Carntyne Incinerator. The incinerator at Carntyne is authorised by SEPA under the Environmental Protection Act 1990, Part 1 to incinerate animal carcasses at a rate not exceeding 1 tonne per hour, and the types of waste are limited by Conditions 2.1 and 2.2 of the Authorisation (copy enclosed).

The Environmental Protection (Prescribed Processes and Substances) Regulations 1991 (as amended) prescribe certain processes for regulation by SEPA. Section 5.1 Part B paragraph (a) prescribes "the destruction by burning in an incinerator of any waste, including animal remains". SEPA has not specifically prevented the plant incinerating carcasses which are later confirmed to be suffering from BSE, as incineration of BSE contaminated carcasses is not a separately identified prescribed process under the above Regulations.

Although SEPA would find it difficult to include conditions within an authorisation to exclude potentially infected carcasses in compliance with Condition 6 of the planning permission ("No special waste, clinical waste, remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone shall be burned at the plant"), conditions applying the best advice available which should destroy BSE prions which have been included in the authorisation.

Schedule 4 of the Regulations prescribes certain substances for release into the air including organic compounds. The BSE prion is a protein and therefore an organic compound. SEPA can include conditions in an authorisation which require the prevention of releases of prescribed substance or, where that is not practicable, for reducing the release to a minimum and for rendering harmless any such substances which are released.

As the BSE test results are not available until after the carcasses are required to be destroyed (the timescale is dictated by the BSE Monitoring (Scotland) Regulations 2001), SEPA has used the precautionary principle and included conditions within the authorisation dictating the operating methods and parameters to ensure that any BSE prion present is destroyed within the incineration process. These conditions (3.3.1, 3.3.4 and 8.4.1) follow the advice from SEAC (Spongiform Encephalopathy Advisory Committee) dated 7 June 1996 (copy enclosed).

SEPA has no remit with regard to the contracts for disposal of animal carcasses, this is controlled by the Rural Payments Agency (formerly the Intervention Board). Additionally, all testing for BSE is undertaken on behalf of the RPA, and hence is also outwith SEPA's control. SEPA has requested information from DEFRA and the Scottish Executive on the number of carcasses that have been incinerated at Carntyne and have tested positive for BSE. This request was refused and only the total number of carcasses tested in Scotland and, of those, the number of confirmed BSE cases was provided.

With regard to consent to discharge to the sewerage system, this is indeed a matter for Scottish Water to determine, and SEPA is only concerned with the final discharge from the sewage works. As SEPA understand it, there is no simple test that could be done to determine whether any BSE prion was present in the final discharges to the river and hence any decision would be based on the theoretical risk, and SEPA would seek advice from the Chief Medical Officer on this issue.

M Patricia Henton

Chief Executive

ATTACHMENT 1

Sacone Environmental (Glasgow)

Authorisation APC/W/2035 - extract

Schedule 2: waste materials authorised for incineration

8.4 No waste materials other than those described below (hereinafter referred to as "waste") shall be destroyed by burning in the incinerators as described in Schedule 1:

2.1.1

Animal remains, meaning whole or partial animal carcass wastes, hides, skins, including trimmings or partially treated skins, excreta, bedding and waste incidental to the animal carcass.

8.4 To prevent the generation of hydrogen chloride in the flue gas emissions the Company shall avoid the inclusion of any incidental packaging materials which may contain PVC, and, for example, polypropylene or polyethylene shall be used instead.

Schedule 3: conditions applying to process control

8.4 Incinerator Combustion Conditions

3.3.1

The temperature at the point of exit from the secondary combustion chamber of each incinerator shall be maintained at not less than 850°C, including during start up of the primary combustion chamber, and for as long as there is combustible waste in the primary combustion chamber.

3.3.4

The incinerators shall be operated to ensure a minimum gas residence time of 2 seconds in their respective secondary combustion zones.

Schedule 8: plant re-commissioning

8.4 Tests shall be carried out to demonstrate that:

8.4.1

the gas residence time within each incinerator's secondary combustion zones is at least 2 seconds;

ATTACHMENT 2

Incineration

The Committee concluded that incineration, either in power stations or cement kilns (in which temperatures could reach at least 1400°C) or in dedicated incinerators which reached 850°C would be sufficient to ensure that there was no risk, either to those exposed to the smoke plume eg. those living in the neighbourhood or those living downwind of the plant or in relation to the ash which could safely be landfilled. It was noted that some ash from power stations was used in aggregate and that the method of firing cement kilns inevitably resulted in some ash being incorporated in the final product. The Committee concluded that given the nature of these processes, these and any other uses of the ash were perfectly acceptable even for ash from MBM (and tallow) derived from SBM. In summary, the Committee did not feel that there were any reasons related to BSE which militated against the use of tallow or MBM as a fuel source for either the power generation or cement industries or that required any special precautions to be taken in relation to the protection of the environment either from smoke discharges or from the resulting ash.

SEAC Statement 7 June 1996

LETTER FROM THE CONVENER TO SCOTTISH WATER

14 May 2002

You may be aware that the Transport and the Environment Committee has been referred a petition concerning the operation of the incinerator at Carntyne. I am writing in connection with an associated matter which has been raised by Dorothy-Grace Elder MSP.

You will be aware that there is concern among local residents about the alleged prospect of waste (including, it is alleged, the possibility of BSE-contaminated waste) from the incinerator being discharged into the sewage system. I understand that it is a matter for Scottish Water as to whether a `trade effluent discharge consent' is granted.

Can you inform me what is the background to this consent being sought; what is the regulatory framework which determines how Scottish Water acts in such situations, including what consultation is required to take place Can you let me know what measures you have taken in considering this particular application (including details of who you have consulted) together with information on the current status of the application. Can you also provide assurances on how the sewage and waste water treatment process will deal with any BSE-infected material.

I should like the Committee to consider the petition and the associated issues at its meeting on 5 June. To this end I should be grateful if you would respond by 29 May. I understand that this is a relatively tight timescale but would appreciate your assistance in order that the Committee can deal with this matter promptly.

I should be grateful if you would copy your response to the clerk to the Committee, Callum Thomson (e-mail: callum.thomson@scottish.parliament.uk).

Copies of this letter go to Dorothy Grace Elder MSP and Margaret Curran MSP.

Bristow Muldoon MSP

Convener

LETTER FROM SCOTTISH WATER TO THE CONVENER

23 May 2002

Carntyne Incinerator

Further to the questions raised in your letter of 14 May 2002 please accept the following response.

Sacone operates the incinerator at Carntyne as a bovine carcass incinerator. Part of the on site processing of the carcasses involves the wash-down of floors, plant and machinery. The water involved in the process is classified as a trade effluent (TE) and as such requires a trade effluent consent. The company applied for consent to discharge this TE on the 22nd February 2002.

Scottish Water (SW) regulates all TE discharges under Part (II) Sewerage (Scotland) Act 1968 and uses section 27 of this act as the basis for its procedure.

The application was circulated internally and advice was sought from colleagues. In addition SW consulted externally with DEFRA and SEPA. Substantial research was carried out into the subject to find the most up-to-date and relevant guidelines to provide SW with a good framework on which to base our decision. This was largely found in the Water Services Association, "Guidelines for the disposal of liquid wastes from all premises handling specified risk material" as approved by S.E.A.C (Spongiform Encephelopathy Advisory Committee) and recommended by the sewerage undertakers of Great Britain, EA (England & Wales), SEPA and prepared in collaboration with the MAFF, Dept. of Health, DETR, The Scottish Office and the Welsh Office.

This application has now been assessed and the consent has been signed and issued by an Authorised person of SW. The deadline for completion of processing this application under the above act was the 22nd of May 2002.

The trade effluent consented has an organic content. Sewage treatment processes have the ability to break down organic material. They also provide efficient removal of particulate material that will settle or float during primary treatment processes and as such become part of the sludge removed from the works.

Dalmarnock Wastewater Treatment Works (WWTW) routinely produces around 600,000 Kg (2.5% dry solids) of sludge per day. This is in turn diluted with 2,200,200 Kg (2.5% dry solids) of sludge from Paisley & Shieldhall WWTW plus another 1,500,000 Kg of sludge taken to a processing facility by tanker prior to treatment and disposal. Therefore 1 Kg of material discharged into the Dalmarnock Sewer network receives approximately a 1:4.3 million dilution prior to treatment at the sludge treatment centre.

By October 2002 all sewage sludge produced in Glasgow is to be incinerated at Longannet Power station.

I trust this answers the points you raised but if you require any further information please either give me a call or telephone my colleague Alan Robb on 0141 425 2504.

Leigh Hedges

Business Customer Adviser

6 June (19th Meeting, Session 1, (2002)) - Oral Evidence

26 June (22nd Meeting, Session 1, (2002)) - Oral Evidence

18 December (36th Meeting, Session 1, (2002)) - Written Evidence

LETTER FROM THE REPORTER TO THE MINISTER FOR SOCIAL JUSTICE

26 June 2002

Petition 377: Polluting Activities in Built-Up Areas

At its meeting on 6 June 2002, the Transport and the Environment Committee considered Petition PE 377 by Michael Kayes on polluting activities in built up areas.

One of the concerns raised in the petition is the proximity of an incinerator to built-up areas at Carntyne in Glasgow. It is the petitioner's view that the incinerator produces airborne emissions and releases pollutants into the water supply which are detrimental to the health of those living in the surrounding area.

You will be aware that planning approval for the incinerator at Carntyne was initially refused by Glasgow City Council. The Scottish Office then appointed a reporter to look into the planning proposal and went on to approve it at its appeal stage.

At the meeting on 6 June, the Committee agreed to appoint me as a reporter on the petition and that I should write to the Minister for Environment and Rural Development and yourself on issues arising from the petition.

Firstly, members of the Committee were interested in gaining an understanding of the types of circumstances in which decisions of planning authorities are overturned. I appreciate that you will not be able to comment on specific cases but I anticipate that, over the course of time, your officials will have identified some common reasons for successful planning appeals.

Secondly, members wished to understand the nature and status of the current planning regulations in relation to the siting of incinerators. I should be grateful if you could supply me with information on this, particularly with reference to operations which wish to burn animal remains in urban areas.

In the case of Carntyne, it has been argued that the planning permission did not allow for animals clinically confirmed or diagnosed as suffering from BSE to be burned at the plant.

However in a letter to the Committee's convener, the Chief Executive of SEPA said that SEPA has not specifically prevented the plant incinerating carcasses which are later confirmed or diagnosed as suffering from BSE, as incineration of BSE contaminated carcasses is not a separately identified prescribed process under the Environmental Protection Regulations.

It is argued that the planning conditions may be being circumvented, because incineration has already taken place by the time the results have been received in respect of the BSE tests. So, in cases where positive tests are recorded, cattle are being incinerated at a plant which does not possess the necessary license.

It seems to me that one of the key issues raised by the petition is the interplay between conditions set by the planning permission and the conditions set by the licensing authorisation. In the case of Carntyne, local people clearly feel that the system - in not preventing the possibility of the incineration of BSE-infected cattle - has let them down. I should be grateful for your views on this. I have also written to Ross Finnie on this point.

On the basis that the operation at Carntyne is operating in compliance with the planning permission and licensing conditions, could you let me know what plans exist for a review of planning policy in respect of the siting of incinerators in urban areas?

I should be grateful to receive a response by 19 July. Please copy your response to the clerk to the Committee, Callum Thomson.

I have copied this letter to Dorothy-Grace Elder MSP.

Fiona McLeod MSP

Reporter

LETTER FROM THE DEPUTY MINISTER FOR SOCIAL JUSTICE TO THE REPORTER

23 July 2002

Thank you for your letter of 26 June about the Transport and the Environment Committee's consideration of Petition PE 377 by Michael Kayes concerning the operation of the animal waste incinerator at Carntyne in Glasgow. The Committee raised a number of issues to which I respond as follows:

Circumstances in which decisions of planning authorities are overturned

In your letter you state that members of the Committee were interested in gaining an understanding of the types of circumstances in which decisions of planning authorities are overturned. The planning Acts (Section 25 and 37(2) of the Town and Country Planning (Scotland) Act 1997) require that planning decisions are made in accordance with the development plan unless material considerations indicate otherwise. That requirement applies to planning authorities, to the Scottish Ministers and to inquiry reporters acting under powers delegated by Ministers.

The interpretation of this provision was clarified in a determination by the House of Lords in 1998 (City of Edinburgh Council v the Secretary of State for Scotland). As a result, where a proposal accords with the development plan and there are no material considerations indicating that permission should be refused, planning permission should be granted. Conversely, where the proposal does not accord with the development plan, permission should be refused unless there are material considerations indicating that it should be granted. The effect is that in deciding a planning application, priority must initially be given to the development plan, but flexibility is allowed depending on the facts and circumstances of each case.

These statutory provisions mean that where a planning proposal is being considered on appeal, the parties and the inquiry reporter focus on the relationship between the reasons given by the planning authority for the refusal of planning permission, the provisions of the development plan and the material considerations that are suggested to be relevant, both for and against the proposal. The decision-maker conducts a balancing exercise and the Courts have held for some time that the weight to be attached to any relevant material consideration in this balancing exercise is for the judgement of the decision-maker. Clearly in reaching that judgement, reasons have to be given that are sufficient to explain and justify the assessment that has been made.

Most planning appeals are dealt with by an exchange of written submissions followed by a site inspection. For these cases the success rate for appellants is typically around 28-30% in any year. A small proportion of planning appeals is determined following a public inquiry and in those cases success rates tend to be higher, typically up to 31-38%. Both the appellant and the planning authority have the right to request that the case proceed by means of an inquiry, rather than being determined by an exchange of written submissions. The higher success rate where an inquiry is held may reflect the fact that appellants use this procedure where they consider the arguments to be more finely balanced and thus susceptible to a different outcome when reviewed independently.

The Committee wishes to gain an understanding of the types of circumstances in which the decisions of planning authorities are overturned as the result of appeals being allowed. The most common such circumstance is where the decision-taker reaches a different conclusion on the appropriate balance to be struck between the provisions of the development plan and the material considerations relevant to the planning merits of the development. This difference of view is brought into sharpest focus in those cases where the planning application that is the subject of the appeal was recommended to the council for approval by the council's officers, but permission was refused by the planning authority because Members balanced that same equation in a different way. The officers' recommendation would be based on their consideration of the relationship between the proposal and their authority's development plan, together with the other factors that they considered relevant to the outcome, including the views of objectors and those who supported the development. However, in such cases and based on those same facts and arguments, the members of the planning authority reached a different view.

In a relatively few cases each year, planning authorities do not seek to defend their decision in an appeal. Even in these cases the Reporter makes a proper assessment of both the provisions of the development plan and material considerations before reaching a decision. In such cases, where the initial decision of the planning authority is found to have been appropriate, their decision would be supported and the appeal dismissed, even though the council had not lodged a defence.

Other appeals are made because the planning authority has failed to reach a decision within the period prescribed by statute. In at least some of these cases there is the possibility that the planning application would not have been refused by the planning authority and for that reason an appeal against non-determination would be likely to be successful. As with all other appeals, the decision is still taken by balancing the facts and arguments in the context set by Section 25 of the Act. This approach applies whether the decision on the appeal is taken under powers delegated by the Scottish Ministers to an individual reporter or by the Scottish Ministers themselves

Planning regulations relating specifically to the siting of incinerators

Your letter also stated that your members wished to understand the nature and status of the current planning regulations in relation to incinerators. The current legislative position is that there are no planning regulations relating specifically to the siting of incinerators.

National Planning Policy Guideline 1: The Planning System explains the requirement that planning decisions should be made in accordance with development plans unless material considerations indicate otherwise. It is crucial, therefore, to have appropriately worded policies in development plans. The preparation of these plans includes opportunities for public representation and objection during both the consultative and the public inquiry stages.

In the case of incinerators, there are 2 specific mechanisms designed to ensure that material considerations are not overlooked:

facilities for the disposal of refuse or waste materials (which would include incinerators) are included in the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 among a list of classes of development referred to as "bad neighbour development". This entails an additional degree of publicity and, therefore, an additional opportunity for representations to be made; and

waste incinerators, depending on their capacity and the nature of the waste disposed of, are included in either Schedule 1 or Schedule 2 of the Environmental Impact Assessment (Scotland) Regulations 1999 (the 1999 Regulations). In the case of Schedule 1 projects it is mandatory that environmental impact assessment (EIA) is undertaken before planning permission is granted. While EIA is not mandatory in the case of Schedule 2 projects, the screening process that has to be undertaken by the planning authority to establish whether or not EIA is necessary involves thorough consideration of the potential environmental impacts of the proposed development.

I should point out, however, that the 1999 Regulations were not in force when planning permission was granted for the Carntyne incinerator. The incinerator did not fall within the scope of the earlier Environmental Assessment (Scotland) Regulations 1988. The 1988 Regulations referred only to "controlled" waste, which does not include animal carcasses/waste, whereas the 1999 Regulations do not qualify the word "waste"

Interplay between planning conditions and licence conditions

Planning Advice Note 51: Planning and Environmental Protection gives advice on the role of the planning system in controlling pollution and its relationship to a number of environmental protection regimes. It concludes that it is the responsibility of planning authorities and the environmental protection bodies to collaborate in the task of protecting the environment, and to apply controls to that duplication is minimised and overlap is avoided whenever possible. You will also wish to be aware of Circular 4/1998: The Use of Conditions in Planning Permissions which sets out Executive policy on the use of conditions in planning permissions. As a matter of policy, conditions should only be imposed where they are: necessary, relevant to planning; relevant to the development to be permitted; enforceable; precise; and reasonable.

Plans for review of planning policy

We have no current plans to review our planning policy in this regard. National Planning Policy Guideline 10: Planning and Waste Management is still relevant. It will be reviewed as part of the programme of review announced recently in Review of Strategic Planning: Conclusions and Next Steps. However, NPPG 10 is not one of our immediate priorities. The related Planning Advice Note 63: Waste Management Planning was revised and updated earlier this year.

I hope that the Committee finds these comments helpful.

I have copied this letter to Dorothy-Grace Elder MSP and Callum Thomson.

Hugh Henry

Deputy Minister for Social Justice

LETTER FROM THE REPORTER TO THE MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT

26 June 2002

Petition 377: Polluting Activities in Built-Up Areas

At its meeting on 6 June 2002, the Transport and the Environment Committee considered Petition PE 377 by Michael Kayes on polluting activities in built up areas.

One of the concerns raised in the petition is the proximity of an incinerator to built-up areas at Carntyne in Glasgow. It is the petitioner's view that the incinerator produces airborne emissions and releases pollutants into the water supply which are detrimental to the health of those living in the surrounding area.

You may be aware that planning approval for the incinerator at Carntyne was initially refused by Glasgow City Council. The Scottish Office then appointed a reporter to look into the planning proposal and went on to approve it at its appeal stage.

At the meeting on 6 June, the Committee agreed to appoint me as a reporter on the petition and that I should write to the Minister for Social Justice and yourself on issues arising from the petition.

In the case of Carntyne, it has been argued that the planning permission did not allow for animals clinically confirmed or diagnosed as suffering from BSE to be burned at the plant.

However in a letter to the Committee's convener, the Chief Executive of SEPA said that SEPA has not specifically prevented the plant incinerating carcasses which are later confirmed or diagnosed as suffering from BSE, as incineration of BSE contaminated carcasses is not a separately identified prescribed process under the Environmental Protection Regulations.

It is argued that the planning conditions may be being circumvented, because incineration has already taken place by the time the results have been received in respect of the BSE tests. So, in cases where positive tests are recorded, cattle are being incinerated at a plant which does not possess the necessary license.

It seems to me that one of the key issues raised by the petition is the interplay between conditions set by the planning permission and the conditions set by the licensing authorisation. In the case of Carntyne, local people clearly feel that the system - in not preventing the possibility of the incineration of BSE-infected cattle - has let them down. I should be grateful for your views on this. I have also written to Margaret Curran on this point.

Furthermore, I should be grateful for your views on what are the safe operating practices for the incineration, or other methods of disposal, for fallen cattle, in particular where there is a possibility of BSE-infection. Do you consider that the current Regulations are adequate in light of the comments from the Chief Executive of SEPA?

The Chief Executive also noted that SEPA had requested information from both DEFRA and the Scottish Executive on the number of carcasses that have been incinerated at Carntyne and have tested positive for BSE. This request was refused and only the total number of carcasses tested in Scotland and, of those, the number of confirmed BSE cases was provided. Why has this information not been made publicly available or, indeed, provided to SEPA when it has responsibility for setting the licensing conditions?

I should be grateful to receive a response by 19 July. Please copy your response to the clerk to the Committee, Callum Thomson.

I have copied this letter to Dorothy-Grace Elder MSP.

Fiona McLeod MSP

Reporter

LETTER FROM THE MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT TO THE REPORTER

22 July 2002

Petition 377: Polluting Activities in Built-Up Areas

Thank you for your letter of 20 June about the Transport and the Environment Committee's consideration of Petition PE 377 by Michael Kayes concerning the operation of the animal waste incinerator at Carntyne in Glasgow. The Committee raised a number of issues to which I am happy to respond and, I hope, clarify.

The petition and your comments seem to cover 3 main concerns, namely air pollution, concerns about the way planning conditions are being applied, and risks from the BSE prion affecting residents through airborne or water-borne transmission.

Air Pollution

The petitioner expressed concern that the incinerator may be producing airborne emissions which are detrimental to the health of those living in the surrounding area. A particular point of concern was the proximity of the incinerator to built-up areas. As you know, the proposed location for the Carntyne incinerator was examined in detail by the Inquiry Reporter appointed in 1997 to determine the appeal against the refusal of planning permission by Glasgow City Council. The Reporter noted in her decision that it took account of the Scottish Environment Protection Agency's (SEPA) evidence confirming that it had no objection to the proposal and that the incinerator would be subject to strict controls under the Environment Protection Act 1990.

In setting permit conditions for such plants, SEPA will refer to Process Guidance Notes - technical documents that seek to set a consistent standard of regulation for all similar operations across the UK. I understand that the conditions in SEPA's authorisation for airborne pollutants comply the relevant Process Guidance Note in this case. The Environmental Protection Act 1990 allows permit conditions to be made on a site specific basis, meaning that SEPA has the power to set conditions that take account of the location of the incinerator relative to the local population.

I note that the Committee queried what dioxin levels were present at the Carntyne plant. I understand that dioxin concentrations during February this year ranged from 0.15 to <0.001 ng/m3. The Process Guidance Note applicable to the sector indicates a limit of 1 ng/m3.

I do have considerable sympathy with the petitioners, in that the compliance record of this plant is poor, and residents have clearly suffered nuisance from smoke and odour on a number of occasions. SEPA advises me that it has issued a total of four enforcement notices against the plant: two in 1999, one in October 2001 (together with a prohibition notice), and one in March 2002 (re-issued in April). The latest enforcement notice resulted from the exceedance of emissions limits for particulates. This resulted in the plant closing down for new abatement equipment to be installed.

The processes regulated under EPA90 are set out in the Environmental Protection (Prescribed Processes and Substances) Regulations 1991. As you note, the regulations do not specifically cover disposal of BSE-infected carcasses. However, they do cover "the destruction by burning in an incinerator, of any waste, including animal remains…". This means that any such incinerator would be subject to regulation.

I believe the powers under EPA90 to set site specific conditions and the enforcement powers that exist do provide a sufficient framework to protect residents from nuisance and health risks from airborne pollution. There will clearly be a degree of judgement to be used in how these powers are exercised, and I can see that residents are frustrated that the improvements put in place in response to previous enforcement notices were not sufficient to resolve the problems. However, SEPA has advised me that emissions should be amongst the lowest for this type of plant in the UK once new abatement equipment is installed. I would note, however, that much also depends on the way the plant is operated to ensure this is the case and prevent nuisance from odours, etc.

Compliance with Planning Conditions
As you know, planning permission was granted subject to a number of conditions, one of which required that no remains from cattle clinically confirmed or diagnosed as suffering from BSE should be burned at the plant. Once planning permission was granted it was for Glasgow City Council, and SEPA in terms of its regulatory functions, to ensure that all conditions associated with the operation of the plant were complied with, and to take any action which they believed was necessary.

I can see that there is concern that planning conditions may be being circumvented because incineration is carried out before the BSE test results are known. I do acknowledge the point made, but it is a legal judgement for the council as to whether the way this operates is in compliance with the planning conditions set. My over-riding concern is, whatever the legal judgement on this point, that local residents receive an appropriate level of protection from BSE-related risks.

The Committee may be interested to know that a decision was taken at the outset, before the BSE monitoring scheme went operational, that rather than store carcasses it would be more efficient to make it a contractual requirement that disposal was undertaken quickly. The fact of the matter is that there is not a scientifically validated test currently available that produces an instant result. The tests we are obliged to use, as specified by the European Commission, take around 10 to 14 days to generate a positive or negative result. With the volumes involved, each disposal site would need a fairly large refrigerated unit to hold the carcasses. It is worth noting that these animals are valueless anyway as they cannot enter either the animal or human food chain. It therefore makes more sense for control and economic purposes to burn the carcass as soon as possible after the sample is removed.

You note that data was not made available on the number of cattle incinerated at Carntyne that were subsequently diagnosed with BSE. I would note that this is not the result of any reluctance on our part to release the data. Rather it is a factor of the way the data are collected. For disease surveillance purposes, the Rural Payments Agency, which operates the BSE scheme, is not interested in the disposal point but the holding of origin, to determine how and when the animal was exposed to the BSE infective agent and whether other animals were similarly exposed.

Risks from Airborne or Water Borne Transmission of the BSE Prion
Risks related to exposure to the BSE prion are clearly a matter of great concern to the public in general. I can therefore see why the petitioners are anxious if they feel they are being exposed to such risks by virtue of the location and operation of the Carntyne plant.

In terms of water-borne transmission of the BSE prion, Scottish Water's position is that the screening controls at the Carntyne incinerator are more than adequate and, in fact, exceed the standards set in the "Guidelines for the Disposal of Liquid Wastes from all Premises Handling Specified Risk Material". These guidelines were published by Water UK in 1997 and are based on advice published by the Spongiform Encephalopathy Advisory Committee (SEAC). I understand the guidelines recommend a 4 mm screen whereas, in fact, a 2mm screen is installed at the Carntyne incinerator. Site visits by inspectors from the former West of Scotland Water Authority confirmed that Sacone have adequate arrangements in place to prevent, or reduce to an acceptable level, any health risk from discharges from the plant.

The other key question is whether residents of Carntyne are being exposed to BSE risks from airborne emissions from the incinerator - you asked specifically about safe operating practices for the incineration of fallen cattle. I would note that European and domestic legislation applies a disposal hierarchy when dealing with animal waste. Incineration is at the top of this hierarchy. The minimum standard required for sites involved in the BSE programme is based on the risk assessment commissioned by the Environment Agency in 1997 in association with the UK Government's independent advisory committee SEAC. SEPA's authorisation therefore requires that the incinerator is operated at a minimum of 850 degrees C. This is in line with Government policy and scientific evidence that this temperature, together with a 2 second residence time, is sufficient to destroy the BSE prion. The incinerator is capable at operating at up to 1000 degrees C. Provided the Carntyne plant operates at the minimum temperatures required by SEPA in its authorisation, any airborne BSE infectivity likely to be present would be reduced to minute, non-dangerous levels after incineration.

During the Committee's meeting on 6 June it was suggested that the plant would need to operate at 1,400 degrees C in order to destroy the BSE prion. I am not aware of the study being referred to, but would be happy to investigate if you can provide further details.

I realise that residents will be concerned that the poor compliance record of the plant is reflected in a less than rigorous approach by the incinerator's operators to complying with conditions intended to ensure BSE risks are minimised. I share this concern. I would therefore expect regulators to take very seriously any incident that involved operating conditions potentially failing to meet the requirements intended to ensure the prion is destroyed.

Summary
In summary, I am sympathetic to the concerns of the petitioners and can understand the source of their concern. They have clearly suffered nuisance from the plant at various points in time. I am, however, satisfied that powers do exist to set conditions to protect their health and take enforcement action where necessary. There is clearly a level of regulatory judgement involved in deciding the extent of improvements necessary to correct any problems once enforcement action is taken. I understand the frustration of residents that, despite previous improvements, enforcement has been required on a number of subsequent occasions to address further emissions problems. I am sure SEPA will reflect on this experience in deciding its future regulatory approach.

I hope these comments are helpful to the Committee.

I have copied this letter to Callum Thomson.

LETTER FROM THE MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT TO THE REPORTER

5 September 2002

I refer to your letter of 20 June outlining the Committee's concerns with regard to the operation of the animal waste incinerator at Carntyne. Since I provided a substantive reply to your letter on 5 July, further information has been collated that the Committee will wish to be aware of.

In view of the understandable concern of the local residents, officials were instructed to research the information collated for BSE surveillance purposes in order to ascertain the number of positive cases processed at this unit. I can now advise that, in the period between September 2001 and March of this year, only 2 of the bovine carcases delivered to this plant for sampling and incineration were subsequently found to test positive for BSE. This figure compares well with the national average and, provided the plant operated at the required minimum temperature of 850 degrees C, would have reduced infectivity to minute, non-dangerous levels. From the information provided by SEPA, I understand that this plant has indeed observed this requirement. I trust therefore that this additional information will provide further reassurance to the Committee.

Secondly, as you will know, the plant has been the subject of enforcement action by SEPA in recent months in order to rectify problems identified with emissions levels. The current position is that the incinerator remains closed pending SEPA's determination of Sacone's application for a variation of their license reflecting the new equipment installed at the plant. SEPA has consulted publicly on the application and is currently scrutinising the effect of the changes on the dispersal of airborne pollution. A decision by SEPA on whether to agree the variation is expected very shortly.

Ross Finnie

Minister for Environment and Rural Development

LETTER FROM THE REPORTER TO THE MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT

October 2002

Petition 377: Polluting Activities in Built-Up Areas

You will recall that, in previous correspondence, the Committee requested information on the number of animals diagnosed with BSE incinerated at the Carntyne incinerator. Your response in July 2002 stated that the Rural Payments Agency collates data on the basis of the origin of the BSE infection not the disposal point and therefore this information was unavailable.

The Chief Executive of SEPA noted in correspondence to the Convener that the agency had requested information from the Scottish Executive on the number of carcasses that have been incinerated at Carntyne and have tested positive for BSE. This request was refused and only the total number of carcasses tested in Scotland and, of those, the number of confirmed BSE cases was provided.

However, in your recent letter dated 5 September 2002 you provided information on the number of animals with BSE which were processed at the incinerator in Carntyne between September 2001 and March 2002. Please could you let me know why this information has only been collated and made publicly available at this stage when the organisation responsible for the environmental regulation of the incinerator requested it some months ago? Following the release of this information do you intend to have this information collated, provided to SEPA and made publicly available on a regular basis in the future?

Turning to the licensing conditions laid down by SEPA, in your letter dated July 2002 you note the poor compliance record of the operators of the Carntyne incinerator and state that you are positive that SEPA will reflect on this experience in deciding its future approach. You also noted your sympathy with the petitioners and added that you understand the source of their concern.

In terms of SEPA taking action against the operators, SEPA representatives have stated that ultimately you have the capacity to direct SEPA in its actions. Therefore, in light of your concern, could you let me know at what stage you would consider it necessary to become involved in the decision making process.

Finally, in light of the problems experienced at the incinerator in Carntyne, I should be grateful for your views on what, if any, are the practical alternatives for the disposal of animals to incineration.

I should like the Committee to consider the petition and the associated issues at its meeting on 30 October. To this end I should be grateful if you would respond by 22 October.

I have copied this letter to Dorothy-Grace Elder MSP.

Fiona McLeod MSP

Reporter

LETTER FROM THE MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT TO THE REPORTER

18 October 2002

Thank you for your letter of 2 October in which you raised further points regarding the Carntyne incinerator.

The first point you raise concerns the apparent contradiction between my response back in July, when the Executive indicated it could not provide details of the number of bovines processed at Carntyne which were subsequently found to be positive BSE cases, and my more recent update, sent on 5 September. The second letter contained the relevant figure for the period between September 2001 and March 2002. The explanation is that in recognition of the particular sensitivity surrounding this matter officials were instructed by Ministers to conduct a special exercise to extract the relevant information for Carntyne from the national BSE database.

As regards publication of such data in the future, again in view of the special circumstances in this case I will arrange for officials to provide the relevant information to SEPA for a period of six months after the plant recommences operations. I am not however minded to give such a commitment for a longer timescale in view of the amount of work involved in such an exercise and in fairness to the company in comparison to the position of other units across Scotland engaged in similar activities.

Although Scottish Ministers have powers to direct SEPA to withhold an authorisation from a particular operator, I believe that taking such action would be appropriate in only very limited circumstances. SEPA was set up as the statutory regulator for pollution control in Scotland and it is appropriate that the Agency is permitted to fulfil its statutory functions without direct intervention from the Scottish Ministers, and to use the powers available to it to reduce or eliminate pollution.

Powers of direction have never been used previously to intervene directly in SEPA's statutory functions in the way suggested for the Carntyne incinerator. Such action could cut across the policy interests of other areas of the Executive (in Sacone's case, for example, Food and Agriculture Group) and set an unwelcome precedent. Scottish Ministers' powers of direction are limited to requiring SEPA to use the powers already available to the Agency. It is appropriate that reliance is placed on SEPA to use its experience and expertise to deploy these powers itself rather than Ministers intervening directly. That said, if there was a risk to public health or if I believed SEPA was failing in its duty to protect the environment, I would certainly consider the appropriateness of directing SEPA. However, I am satisfied that neither of these factors is relevant in the case of Carntyne.

I remain of the view that the powers under Part I of the Environmental Protection Act 1990 are sufficient to enable SEPA to address the risk of pollution from the Carntyne incinerator and to take enforcement action against Sacone if any condition in SEPA's authorisation is breached. If SEPA believes that Sacone are contravening, or are likely to contravene, any condition in the authorisation, the Agency has powers to issue an enforcement notice requiring the company to take remedial action to address the contravention. SEPA has powers to require the company to cease operating until the remedial works have been completed, which it has already used, and tested to the Agency's satisfaction. This process may be repeated a number of times - and I recognise that this is a source of frustration for residents - but I believe it is reasonable that SEPA gives Sacone the opportunity to respond to enforcement notices in order to meet the required emission standards. I firmly believe that decisions on environmental authorisations need to be based on sound science and regulatory expertise. I am, nevertheless, very conscious of the need for both SEPA and Sacone to take every step practicable to ensure that the Carntyne incinerator complies with SEPA's authorisation. I have, therefore, asked officials to monitor the situation closely to ensure that the previous problems at the plant do not recur.

Finally, with regard to alternative disposal methods available, the new EU Animal By-products Regulation will provide for alternative methods of disposal, such as composting. Incineration however remains the most effective disposal method for high risk animal waste.

I trust this further clarification will be of assistance to the Committee on 30 October. As requested, a copy of this reply goes to the assistant clerk, and to Dorothy-Grace Elder.

Ross Finnie

Minister for Environment and Rural Development

EMAIL FROM DOROTHY-GRACE ELDER TO THE CONVENER

Reporter's Paper on Petition PE377 by Michael Kayes on Polluting Activites in Built-Up Areas.

I have just received today the Report by Fiona McLeod and am at the Health Committee on Wednesday morning. I would ask that my comments be circulated to your committee, if you are good enough to allow this.

I drafted the above petition and took the case before the Transport and Environment Committee in June, in Mr. Kayes's absence on holiday. I also petitioned the European Parliament (own name) and the case was heard on July 9, 2002 on Brussels.

As you are aware, it was decided that day to send a European delegation to Glasgow to investigate matters further; Mr Prodi agreed this formally and the delegation should arrive soon.

I agree with the Reporter's conclusions but would add three more for consideration:

· Ms McLeod's item 49 should be one of the specific recommendations.

· And, while SEPA does not have the powers sought at present, they should be urged to apply the precautionary principle properly and abandon their present reluctance to even advise against unsuitable sites - site being the major problem at Carntyne.

· This incinerator should not be allowed to re-open. The evidence against it is too compelling - allowing it to be situated in such an area is extremely bad for the reputation of Scotland over the environment and possible risk to human health and well-being. (Note: in October 2002, City Councillors turned down planning permission for additional works, just as they had, in 1998, refused planning permission for the plant)

· General point: SEPA is not, as the Reporter states using "the precautionary principle": they claim the "precautionary approach" which is very different. The precautionary principle is in the Treaty of Rome and has recognised status. "Approach" is fudge. It has no status - SEPA is well aware of this. The precautionary principle could have been used to stop this plant being sited in the area in the first place.

· On my visit to the European Parliament and meetings with MEPs and Commission officials, none knew of any cattle incinerator in Europe in a built-up area like Carntyne. Nor could I find any, despite extensive research prior to going to Brussels.

Pollution and incineration experts with the EC looked at the photographs of the area and assumed that the district had "grown up around the incinerator and that it is a historical accident".

They were very concerned to be told the opposite is the case - that the incinerator has been created only over the last four years in an established residential district of 60,000.

MEPs and officials expressed concern about the children in the area in particular - there are 17 schools and nurseries.

Risk with tests for BSE

Point 32: "The tests specified by the European Commission take 10 to 14 days to generate a positive or negative result..."

In Brussels, I visited the European Commission officials responsible for the BSE Surveillance programme. They were deeply concerned when I told them of the 10 to 14 day gap, stating that in Germany and France results were emailed or couriered overnight or within in a few hours from laboratories. This was to protect workers in abattoirs and incineration plants. They agreed with my concern about the workers at the Carntyne plant being in a "Russian roulette" situation, not knowing which cadaver they had handled had turned out to be BSE positive until quite long after the animal was incinerated under the 72 hour rule.

Germany and France, I was told, had many more laboratories and they had to do the job fast for worker and public protection. The large number of laboratories is also because they release OTMS into the food chain if there is a negative result - Britain incinerates these cattle also. But "fallen stock", as handled at Carntyne, are at higher risk.

Point 33 confirms that two BSE infected cattle have been burned at Carntyne between September 2001 and March 2002...before the BSE tests had been processed.

I must point out that this may be a higher discovery rate of BSE than might be expected - the key point is: how many cattle were in this period? The plant was closed by SEPA on October 9 2001 until Christmas 2001 because of a particularly severe pollution episode (smoke five feet off rooftops). It was closed again in March 2002 until present because of more pollution.

So how many cattle were burned in total between September 2001 and March 2002?

Is this information available?

Not licensed to burn BSE suspect cattle

Stress must be put on the fact that this burner is not licensed to handle BSE.

The Reporter, in Point 29 correctly states that planning condition 6 says:

"No special waste, clinical waste, remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone shall be burned at the plant"

Clause 6 was written in 1998 by the Appeal Reporter - when it was not envisaged that "fallen stock" would be investigated (this started only in 2001). Clause 6 is clearly meant to prevent any BSE linked burning-but SEPA have chosen to interpret this as meaning that suspect BSE can be incinerated at Carntyne - as long as they were not diagnosed before entering the plant. That is an unacceptable play on words.

"Fallen stock" are in the official "high risk of BSE" category. SEPA's interpretation errs on the side of business, not the public interest. Even without backing by statutory rights, no environmental protection agency is expected to be so weak.

Overall, this situation shows Scotland in a very bad light - no concern for the people from the start, including lack of risk assessments, risk to workers and interpretation of the rules to suit business, not the local residents. Having been involved in this case for two years, I find it a disgraceful catalogue of carelessness and disregard for people.

18 December (36th Meeting, Session 1 (2002)) - Oral Evidence

18 February (4th Meeting, Session 1 (2003)) - Written Evidence

REPORTER'S PAPER ON PETITION PE377 BY MICHAEL KAYES ON POLLUTING ACTIVITIES IN BUILT-UP AREAS

Introduction

1. This paper outlines work undertaken by Fiona McLeod MSP, and the Transport and the Environment Committee as a whole, on petition PE377 on polluting activities in built up areas. The paper reviews the written and oral evidence received by the Reporter and the Committee. The paper makes recommendations from the Reporter for action in a number of areas.

Background

2. The petition expresses concern at the potential impact on the health of residents of the East End of Glasgow of toxic dumping and cattle incineration. The petition requests that the Scottish Parliament carries out an urgent investigation into these practices.

3. One of the petitioner's primary concerns is the effect of airborne and water borne emissions from a cattle and sheep incinerator on the people living in the Carntyne area of Glasgow. The petition includes some background information regarding the specific problems which the petitioner indicates are being faced by residents at Carntyne. Further information regarding the petitioners' concerns can be found in oral evidence they gave to the Public Petitions Committee in June 2001.

4. The following background papers are attached for members' information:

· a copy of the petition;

· an extract from the Official Report of the Public Petitions Committee meeting in June 2001;

· a letter dated 14 May 2002 from the Convener to the Scottish Environmental Protection Agency (SEPA) and its response;

· a letter dated 26 June 2002 from the Reporter to the Minister for Social Justice and its response;

· a letter dated 20 June 2002 from the Reporter to the Minister for Environment and Rural Development, a response dated July 2002 and a further response dated 5 September 2002; and

· a letter dated 2 October 2002 from the Reporter to the Minister for Environment and Rural Development and its response.

Progress of the petition

5. The petition was considered by the Public Petitions Committee (PPC) at its meeting on 19 June 2001, at which time that Committee agreed to seek the views of SEPA on the issues raised in the petition, and on additional points raised by members. A response was received from SEPA, which was subsequently considered at a meeting of the Public Petitions Committee on 11 September 2001.

6. The Public Petitions Committee referred the petition to the Transport and the Environment Committee with the request that it responded to the wider planning issues arising from the petition.

7. Following the referral, local concern was expressed over the possibility that BSE-infected cattle may have been processed at the incinerator despite the operators not possessing the necessary license for this type of incineration. In addition, concern was expressed that BSE-contaminated waste may have been discharged into the sewage system.

8. The Transport and the Environment Committee first considered the petition, at its meeting on 6 June 2002. In recognition of the Committee's practise not to take a view on specific local planning issues, the Committee agreed to appoint a reporter, Fiona McLeod, to examine broader questions relating to the application of the planning system and environmental regulations which arise from the petition.

9. The Committee also agreed that the Reporter should write to (i) the Minister for Social Justice and (ii) the Minister for Environment & Rural Development in respect of some of the issues raised by the petition.

Terms of Reference

10. On 26 June 2002 the Committee approved terms of reference for the Reporter as follows:

The Reporter will report back to the Committee in respect of-

· the current guidelines on location of incinerators and whether there are any proposals to review the existing guidelines;

· the methods for disposal (incineration or otherwise) of material which may be BSE-infected;

· the level of information which is available regarding the number of BSE-infected cattle which are incinerated at individual operations in Scotland.

11. At its meeting on 26 June 2002, the Committee also agreed that an appropriate course of action for the Reporter would be to undertake a site visit of the operation at Carntyne and hold a meeting with SEPA officials to discuss areas of concern.

Work undertaken by the Reporter

12. On 23 August 2002, the Reporter met with SEPA officials in Glasgow. The Reporter then visited the incinerator in Carntyne and met representatives of the owners, Sacone.

13. Following these meetings, the Reporter wrote follow-up letters to the Minister for Environment and Rural Development and the Deputy Minister for Social Justice regarding issues arising from their previous responses and the issues raised during meetings with SEPA and Sacone.

14. The Reporter also met with the petitioner, Michael Kayes, at his home in Carntyne on 7 October 2002.

15. During the investigation of the issues raised by the incinerator at Carntyne the Reporter has gained an appreciation of the dissatisfaction of local residents over the uncertainty surrounding the future operational use of the incinerator. The Reporter recognises the real concerns of the residents in Carntyne.

16. The Committee's policy is not to focus on the particular issues related to individual cases but instead examine whether local problems are illustrative of wider problems with the planning and environmental regulations system. The Reporter believes that the experience of Carntyne highlights in particular three such issues-

· the role of planning authorities and SEPA;

· the current system for the disposal of BSE infected cattle;

· the regulation of incinerators by SEPA

Interplay between planning authorities and SEPA

Environmental Impact Assessment (Scotland) Regulations 1999

17. One of the main concerns raised in the petition is the proximity of the incinerator to built-up areas at Carntyne. The incinerator is situated - in terms of the local authority's development plan - in a light industrial zone. The areas surrounding the zone are all residential.

18. A letter from the Reporter to the Minister for Social Justice dated 26 June 2002 requested information on the current planning guidelines relating to the location of incinerators. The response outlined the current planning guidelines including the Environmental Impact Assessment (Scotland) Regulations 1999.

19. Depending on the capacity of the incinerator, and the nature of the waste disposed of, the Regulations require either a mandatory EIA or a screening process undertaken by the local authority to establish whether or not an EIA is necessary which involves consideration of the potential environmental impacts of the proposed development.

20. The Deputy Minister's response notes that these Regulations were not in place when planning permission was granted for the Carntyne incinerator and that the regulations that were in force at that time (the Environmental Assessment (Scotland) Regulations 1988) did not include provisions for animal carcasses/waste. Therefore, no screening process or EIA was carried out to consider the potential environmental impacts of the incinerator when the original planning application was made.

21. The Reporter is deeply concerned that those considering the application to locate an incinerator in a light industrial zone at Carntyne were not required to consider the specific environmental impacts of an animal carcass incinerator. The Reporter is concerned that, prior to the 1999 Regulations, a similar situation may have arisen with other planning applications for animal carcass incinerators. In light of this concern, the Reporter recommends that a review be carried out on all planning permissions for animal carcass incinerators granted prior to the enforcement of the EIA Regulations 1999.

Enforcement of the EIA Regulations 1999

22. Under the present planning system, the local authority is responsible for enforcing the 1999 EIA Regulations, by carrying out an EIA or an in depth assessment to gauge whether an EIA is required, for each incinerator planning application.

23. It is the role of SEPA to consider whether a proposed incinerator will have the appropriate technology to meet emissions standards for that source material and can then set site specific licensing conditions prescribing that these standards are met. However, SEPA does not have any statutory power to withhold the granting of an operating licence where planning permission has been granted for a process which uses technology appropriate to meet emissions standards for that source material. In addition, SEPA has no statutory right to contribute to the EIA process.

24. Following the granting of planning permission, SEPA monitors substances released into the air from incinerators, the final discharge from sewage works which process discharge from the incinerators and the operating methods and equipment used during the incineration process.

25. The Reporter considers it anomalous that SEPA has no statutory right to contribute to local authority consideration of the environmental impact of proposed incinerators and yet is responsible for the regulation of the environmental impact of incinerators which are granted planning permission.

26. The Reporter notes that NPPG 10 on Planning and Waste Management provides guidance as to the respective responsibilities of the local authority and SEPA. NPPG 10 states that, for incinerators, the role of the planning authority is to deal only with the matters that are material considerations and that the regulation of the incineration process is the responsibility of SEPA.

27. The Reporter is concerned that, in enforcing the EIA Regulations 1999, local authorities are taking responsibility for certain matters within the planning application which are not purely material considerations but matters which would, in the Reporter's opinion, be more appropriately considered in conjunction with SEPA.

28. The Reporter strongly recommends that SEPA have a greater involvement in considering the environmental impact of proposed incinerators as SEPA has specific expertise in this area. The Reporter therefore recommends that SEPA is provided with statutory powers from the Executive to become actively involved in the environmental impact assessment process as a statutory consultee.

The disposal of BSE infected cattle

29. Local authorities are currently responsible for prescribing conditions in relation to the treatment of BSE infected cattle at animal carcass incinerators within planning permissions. For example planning condition 6 for the incinerator at Carntyne states that "No special waste, clinical waste, remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone shall be burned at the plant"

30. Currently there is no requirement for SEPA to make provisions for the treatment of BSE infected cattle. The Environmental Protection (Prescribed Processes and Substances) Regulations 1991 (as amended) prescribes that SEPA must regulate "the destruction by burning in an incinerator of any waste, including animal remains", but does not specifically mention the incineration of BSE contaminated carcasses.

31. The Reporter wrote to the Minister for Environment and Rural Development on 26 June 2002 requesting information on the current method adopted in Scotland for testing for BSE and the disposal of BSE infected cattle in Scotland. The Minister's response states that the disposal of BSE infected cattle in Scotland is by incineration and is controlled by the BSE monitoring scheme which is co-ordinated by the Rural Payments Agency (RPA).

32. The response states that all tests for BSE are undertaken on behalf of the RPA and that the tests specified by the European Commission take 10 to 14 days to generate a positive or negative result. The Minister's response states that storage of the carcasses at incinerators whilst awaiting their test results would require large refrigerated units. The Minister notes that it is the Executive's policy, for control and economic purposes, that rather than store carcasses and await tests results, it is more efficient to incinerate the carcasses quickly.

33. [The Reporter wishes to note that the Executive's policy not to store cattle is based upon the idea that BSE testing takes 10 to 14 days. The Reporter considered the issue of BSE cattle incineration on the assumption that the test used by the Executive was the quickest available test which fulfilled the specification of the European Commission. However, evidence given by Dorothy-Grace Elder MSP to the Committee on 18 December 2002 suggested that similar test results are processed in Germany and France within a few hours9. The Committee therefore seeks clarification from the Executive as to why the test which conforms to European rules takes around 10 to 14 days to process in Scotland when elsewhere in Europe the same test can be processed within a few hours.]

34. In a letter dated 5 September 2002, the Minister for Environment and Rural Development noted that the system outlined above had resulted in 2 BSE infected cattle being burned at Carntyne, before the BSE tests for the cattle had been processed revealing positive results, between September 2001 and March 2002.

35. [During the Committee's consideration of the Reporter's paper on 18 December, members noted their concerns that incinerators such as Carntyne, which are burning BSE cattle but are not licensed to do so, may not be required to take the necessary precautions to protect members of staff from infection. The Committee agreed to seek assurances from the Executive and SEPA that working practices are sufficient to protect staff at all incinerators in Scotland which may be burning BSE infected cattle.]

36. It is clear to the Reporter that the current system for incinerating cattle prior to the receipt of BSE test results, at incinerators which are not licensed to burn BSE infected cattle, circumvents planning conditions.

37. The Reporter does not consider local authorities to be the appropriate bodies to enforce conditions in relation to BSE. The Reporter is of the view that, these conditions are not material considerations of relevance specifically to planning, nor do local authorities possess the infrastructure or the expertise to enforce such conditions.

38. In practice, in the case of Carntyne, SEPA has adopted the precautionary principle meaning that it has set licensing conditions which dictate the operating methods in an attempt to ensure that any BSE prion is destroyed within the incineration process (for instance, setting incinerator temperatures at a minimum of 850_C which, SEPA suggests, is sufficient to destroy the BSE prion).

39. [At the Committee meeting on 18 December, members questioned whether the temperature of 850_C was sufficiently robust to destroy the BSE prion. The Committee agreed to request information from the Executive and SEPA on the basis for setting the temperature at this level.]

40. While the Reporter welcomes the pragmatic approach adopted by SEPA, she considers that the root problem is the respective statutory roles of local authorities and SEPA. The Reporter is of the opinion that there is little merit in setting a planning condition that the planning authority cannot enforce and which, in practice, SEPA enforces. The Reporter therefore recommends that SEPA should have a statutory role in the process for regulating BSE. Specifically, conditions regarding the incineration of BSE infected cattle should be licensing conditions prescribed and enforced by SEPA.

41. In addition, the Reporter does not appreciate the merit in setting planning conditions preventing BSE cattle incineration when this condition cannot be met under the current system for testing and incinerating BSE infected cattle. The Reporter recommends that SEPA should assume that all animal carcass incinerators in Scotland may be burning BSE infected cattle and license and regulate incinerators on that basis.

Availability of information regarding BSE-infected cattle incineration

42. The Rural Payments Agency collates data on all cattle that have been incinerated and have tested positive for BSE. In its response to the Convener, SEPA noted that it had requested information from DEFRA and the Scottish Executive on the number of carcasses that have been incinerated at Carntyne and have tested positive for BSE. This request was refused and only the total number of carcasses tested in Scotland and, of those, the number confirmed with BSE was provided.

43. The Reporter wrote to the Minister for Environment and Rural Development on 26 June 2002 inquiring why specific information about Carntyne had not been made available to SEPA in its role as the environmental regulator. The Minister responded in July 2002 explaining that the RPA only collated information on the origin of the BSE, not the disposal point. However, as mentioned previously, the Minister provided specific information on the number of cattle incinerated at Carntyne in a letter dated 5 September 2002.

44. The Reporter wrote again to the Minister on 2 October 2002 asking why this information was only collated and made publicly available at this stage at the request of a Committee Reporter when the organisation responsible for the environmental regulation of the incinerator requested it some months ago. The Reporter also asked whether, following the release of this information, the Executive intended to have this information collated, provided to SEPA and made publicly available on a regular basis in the future.

45. The Minister replied on 18 October 2002 informing the Reporter that he would arrange for officials to provide the relevant information to SEPA for a period of six months after the incinerator at Carntyne (which is currently closed due to an enforcement notice from SEPA) recommences operations. The Minister added that he would not commit to providing the information on a permanent basis due to the amount of work involved in the exercise.

46. The Reporter is unconvinced by the Minister's reasoning in this matter. The Reporter recommends that the RPA should monitor the origin and the disposal point for BSE infected cattle and provide this information to SEPA on a regular and on-going basis.

The regulation of incinerators by SEPA

47. The Reporter notes that, in order to prevent the production of BSE contaminated waste from incinerators, the current system relies on SEPA enforcing the precautionary principle within its licensing conditions and incinerator operators adhering to these conditions at all times.

48. Four enforcement notices have been issued by SEPA on the incinerator at Carntyne, two of which have been complied with. SEPA wishes to emphasise that the fourth enforcement notice was only enforced due to a technical infringement and was imposed after the incinerator closed due to the third enforcement notice in March 2002. The incinerator is currently closed due to the third enforcement notice which was enforced when the incinerator exceeded emissions limits for particulates. The plant is due to reopen in the New Year once new equipment has been installed.

49. The Minister for Environment and Rural Development's letter to the Reporter dated July 2002, acknowledged the residents' concern regarding BSE contaminated waste. The Minister stated:-

50. "I realise that residents will be concerned that the poor compliance record of the plant is reflected in a less than rigorous approach by the incinerator's operators to complying with conditions intended to ensure BSE risks are minimised. I share this concern. I would therefore expect regulators to take very seriously any incident that involved operating conditions potentially failing to meet the requirements intended to ensure the prion is destroyed."

51. The Reporter notes that the Minister for Environment and Rural Development and that SEPA are both clearly dissatisfied with the incinerator operators' poor compliance record. However, the Reporter is unclear as to the division of responsibility between SEPA and the Minister in deciding a future course of action for Carntyne.

52. Representatives from SEPA have stated that ultimately the Minister has the power to direct SEPA in its actions. The Minister, in a letter dated 18 October 2002, stated that such powers of direction have never been used to intervene directly in SEPA's statutory functions in such a way, and that such action could cut across the policy interests of other areas of the Executive, setting an unwelcome precedent.

53. The Reporter considers it is unacceptable that there isn't consensus between the Executive and SEPA as to the exercise of their respective powers in situations such as the situation at Carntyne. The Reporter urges the Executive and SEPA to liaise in order to adopt a common position.

Fiona McLeod MSP
Reporter

9 January 2003

RESPONSE TO THE REPORTER'S PAPER FROM THE MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT AND THE DEPUTY MINISTER FOR SOCIAL JUSTICE

1 February 2003

Thank you for your letter of 9 January about petition PE 377 concerning the incinerator at Carntyne in the east end of Glasgow. You also wrote to the Deputy Minister for Social Justice and I have agreed with Mr McNulty that this reply will cover both our respective interests in the points raised by the Transport and Environment Committee.

I very much welcome the time taken by the Committee to examine the various issues which the operation of the Carntyne incinerator has highlighted, and for the opportunity to respond to the paper prepared by the Reporter. The Committee has focused on a number of issues, using the experiences at Carntyne as an example, and has sought clarification, and made recommendations, on a number of points. I will comment on each of these in turn.

Environmental Impact Assessment (Scotland) Regulations 1999 (paragraphs 17-21)

Recommendation: that a review be carried out on all planning permissions for animal carcass incinerators granted prior to the enforcement of the EIA Regulations 1999.

This recommendation seeks a review of planning permissions granted for incinerators before the Environmental Impact Assessment (Scotland) Regulations 1999 (the 1999 Regulations) came into force. The changes in the planning regulations on environmental impact assessment (EIA) introduced in 1999, stem from Directive 97/11/EC which amended Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment. The amendments made by Directive 97/11/EC are not intended to apply retrospectively, and Directive 97/11/EC states that for requests for development consent submitted prior to the time limit for implementation "..the provisions of Directive 85/337/EEC prior to these amendments shall continue to apply". In view of this, the 1999 Regulations do not apply retrospectively. The Executive does not see a basis, therefore, for a review of planning permissions granted prior to the coming into force of the 1999 Regulations.

It is worth noting that SEPA's authorisations are subject to 4-yearly statutory reviews. This gives SEPA the opportunity to vary the conditions in its authorisations to take account of the latest technical guidance relevant to the sector or process concerned. In addition, SEPA can vary an authorisation at any time to address a particular problem with a process.

Enforcement of the EIA Regulations 1999 (paragraphs 22-28)

Recommendation: that SEPA is provided with statutory powers from the Executive to become actively involved in the environmental impact assessment process as a statutory consultee.

SEPA is already a "consultation body" under the 1999 Regulations in relation to planning applications. This means, among other things, that SEPA must be consulted for their views on every environmental statement produced. In cases requiring EIA, the 1999 Regulations state that a planning authority shall not grant planning permission for development requiring EIA without taking "the environmental information" into consideration. This "environmental information" includes the environmental statement and any representations made by any body required by the 1999 Regulations to be invited to make representations.

SEPA is also required to be consulted by the planning authority where, prior to making a planning application, a developer asks for the planning authority's opinion on what should be included in an environmental statement. Where a screening opinion on the need for EIA is sought from the planning authority by a developer, there is no statutory requirement to consult SEPA. It would be up to the planning authority to decide whether it needed SEPA's, or any other consultation body's, opinion as part of its screening process on a particular case.

In addition, SEPA is a statutory consultee under the Town and Country Planning (General Development Procedure) (Scotland) Order 1992, with regard to planning applications for building or other operations or the use of land for the retention, treatment or disposal of trade-waste. The Executive's planning policy in relation to waste disposal facilities is set out in National Planning Policy Guideline 10: Planning and Waste Management. Paragraph 17 of NPPG 10 points out that matters relevant to a pollution control authorisation or licence may also be material planning considerations. The weight attached to those matters will depend on the scope of the pollution control system in each case. While it is a long established policy that planning controls should not duplicate other statutory controls, or be used to secure objectives achievable under other legislation, that does not prevent, for example, issues relating to pollution control authorisations or licences informing the planning decision. It also notes, however, that

planning authorities should not substitute their own judgement on pollution control issues for that of SEPA, which has the relevant expertise and statutory responsibility for that control.

SEPA played an important role in the consideration of the planning appeal into the Carntyne incinerator, appearing and giving evidence at the Public Local Inquiry which was held in 1997. The Inquiry Reporter's decision letter noted that SEPA drew attention to a number of planning policy guidelines. In particular the Reporter pointed to guidance in NPPG 10 which indicates that "planning powers should not normally be used to secure objectives which can be achieved under other legislation" and that "measures outwith the planning system may exist for controlling a particular aspect, but that aspect may still be a factor in deciding the planning application......provided account is taken of the views of statutory consultees...". The Reporter then indicated that they (SEPA) "had not objected to the planning application and would only recommend refusal if it thought that its requirements could not be met, which is not the case here.

In considering the evidence the Reporter noted that planning guidance indicates "that planning authorities should not substitute their own judgement on pollution control issues for that of SEPA, which has the relevant expertise and statutory responsibility for control". She also noted that "any EPA [Environmental Protection Act 1990] authorisation would, among other things, set emission standards in line with the current relevant guidance and requires emissions to be free of visible smoke". Drawing all the evidence together the Reporter concluded that "Some of the controls which I regard as essential in guarding against pollution and safeguarding health are intended to be imposed by SEPA, which I find to be the primary responsible authority in those respects". She therefore decided to uphold the appeal, but in so doing she made it absolutely clear that her decision granted planning permission only, the grant of the necessary environmental permit to operate the plant being the responsibility of SEPA.

A root cause of the problems that have arisen at Carntyne is the view that the plant may be located in an inappropriate location given the nature of the activity carried out and its proximity to an urban/residential area. The role SEPA played in the planning process for Carntyne was clearly very relevant. Officials have discussed this with SEPA and have reached a preliminary view that there may be scope for better interaction between the land use planning and environmental protection consenting regimes. We have gathered evidence on this issue as part of the Policy and Financial Management Review of SEPA. While the Scottish Executive's Planning Advice Note 51 advises that land use planning applications that give rise to environment protection considerations should be considered in parallel with the licence application or authorisation, I recognise that the tendency is for the two processes to take place sequentially with SEPA considering the detailed environment protection implications of proposals for which land use consent has already been obtained from the planning authority.

It is, therefore, proposed that the Scottish Executive, in consultation with SEPA and other interested parties, will undertake a study to establish the scope for improving interaction between the statutory land use planning system and environment protection consenting regime. This will include considering the respective powers of the Executive, planning authorities and SEPA to assess the way in which they are working together. As previously noted, NPPG 10 provides SEPA with scope to contribute to the planning process and the study will review whether SEPA's interpretation of the guidance is appropriate.

Testing of carcasses (paragraphs 29-34)

I am happy to clarify the issue over timings to receive BSE test results. Tests can take up to 14 days, particularly where initial tests are either inconclusive or positive, and the sample is referred for further testing. Straightforward tests providing negative results are often processed in 24-48 hours. However, it is still more efficient, both operationally and in terms of health and safety, to incinerate carcasses as soon as possible. I should add that these timings include the despatching of samples.

In Europe BSE testing is carried out on all cattle over 30 months (and in certain countries this is carried out on a voluntary basis for cattle over 24 months) because older cattle can go into the human food chain. This contrasts with the current position in the UK where the vast majority of OTMS (Over Thirty Months Scheme) animals do not enter the food chain. The only exceptions are a very small number of bovines up to 42 months from the Beef Assurance Scheme. My understanding is that the tests for the equivalent BSE surveillance of fallen stock and casualty animals are processed in similar timescales as applied in the UK. In any event, since the incinerator operates above a minimum temperature of 850 degC, the issue of time turnaround for release of BSE test results is not critical in safety terms.

Safe working practices (paragraph 35)

Health and safety is everyone's prime concern and there are no exemptions from general health and safety legislation. Guidance on the health and safety of staff has been produced by a number of Departments who are involved with overseeing the incineration of clinically diagnosed BSE and OTMS carcasses. These include the Health and Safety Executive, the Advisory Committee on Dangerous Pathogens, the Spongiform Encephalopathy Advisory Committee (SEAC) and the Veterinary Laboratory Agency.

In particular, the Rural Payments Agency (RPA) provide written guidance and on-the-job training for staff on the handling of dead stock and the extraction of brainstem samples. Guidance includes safety advice on decontamination and waste disposal. The Committee should be aware that SEPA is not permitted under the Environmental Protection Act 1990 to impose conditions in an authorisation for the purpose only of securing the health of persons at work (within the meaning of Part I of the Health and Safety at Work etc Act 1974).

Incineration temperature (paragraphs 38 and 39)

The principal source of advice to the UK government on transmissible spongiform encephalopathy is SEAC. This Committee has concluded that incineration in dedicated incinerators which reached 850 degC would be sufficient to ensure there was no risk from the BSE prion, either to those exposed to the smoke plume, e.g. those living in the neighbourhood or living downwind of the plant, or in relation to the ash which could safely be landfilled. SEAC's recommendations are reflected in UK Process Guidance Note 5/3(95) which is used by SEPA in its authorisation process to ensure that emissions do not pose a risk to the environment or human health. SEAC's website is at http://www.defra.gov.uk/animalh/bse/bse-publications/level-4-seacstate-07jun96.html. The Committee has previously heard evidence that temperatures up to 1,400 degC may be needed to destroy the BSE prion, but we have been unable to trace the source of these claims.

Role of SEPA (paragraph 40 and 41)

Recommendation: that SEPA should have a statutory role in the process for regulating BSE. Specifically, conditions regarding the incineration of BSE infected cattle should be licensing conditions prescribed and enforced by SEPA.

SEPA currently has a statutory, regulatory role in controlling the receipt of waste, operational conditions, and emissions from processes which dispose of carcasses. As mentioned, this includes the regulation of an incinerator's combustion conditions to ensure that the BSE prion is rendered harmless, in line with Process Guidance Note 5/3(95). I do not believe, however, that there would be any merit in giving SEPA any additional statutory role in the regulation of BSE. This function clearly falls under animal health policy, co-ordinated by UK agriculture departments and assisted by expert advice from the State Veterinary Service. However,

Recommendation: the Reporter queried the merit in setting planning conditions preventing BSE cattle incineration when this condition cannot be met under the current system for testing and incinerating BSE infected cattle, and recommended that SEPA should assume that all animal carcass incinerators in Scotland may be burning BSE infected cattle and licence and regulate incinerators on that basis.

It would be inappropriate for the Executive to comment on the planning merits of a particular planning condition or specific planning permission. As mentioned previously, the Executive's planning policy in relation to waste disposal facilities is set out in National Planning Policy Guideline 10: Planning and Waste Management. Paragraph 104 of NPPG 10 indicates that the physical nature of the waste that is acceptable at a disposal site is an issue which could be covered by planning conditions. Such conditions should comply with the Executive's general guidance on the use of conditions (SEDD Circular 4/1998), which states that, among other things, conditions should relate to planning, be enforceable and reasonable in all other respects. The enforcement of any condition in this regard is a matter for the planning authority.

I understand that the Carntyne incinerator is the only such plant which has a planning condition to the effect that "no...remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone meat shall be burned at the plant".

I can assure the Committee that incinerators contracted for BSE surveillance work are already operating at a level that allows for the possibility that they will process BSE positive cases. As the Committee has noted, SEPA has adopted the precautionary principle by taking SEAC's recommendations into account when setting conditions in its authorisations for dedicated incinerators; that is to say it requires plants to operate at temperatures that are adequate to destroy the BSE prion.

Availability of information regarding BSE-infected cattle incineration (paragraphs 42-46)

Recommendation: that the RPA should monitor the origin and the disposal point for BSE infected cattle and provide this information to SEPA on a regular and on-going basis.

This function is the responsibility of the State Veterinary Service. The RPA have no veterinary expertise to take on this role. The results of the BSE active surveillance programme in Scotland are freely available on the Scottish Executive web site. Equivalent data for the UK is contained in the DEFRA web site. If SEPA has an operational requirement for data on disposal points, I would be prepared to consider such a request.

The regulation of incinerators by SEPA (paragraphs 47-52)

Recommendation: the Reporter considered it unacceptable that there appeared to be no consensus between the Executive and SEPA as to the exercise of their respective powers in situations such as the one at Carntyne, and urged the Executive and SEPA to liaise in order to adopt a common position.

In responding to this recommendation, I have taken into account views expressed by SEPA. I believe that the respective roles and responsibilities of Scottish Ministers and SEPA in regulating industrial plants, like Carntyne, under environmental legislation are clear. It is right that these roles remain separate: the Scottish Executive as legislator and SEPA as enforcer of the regulations. This is consistent with SEPA's status as an executive Non-Departmental Public Body. It is, therefore, appropriate that the Executive adopts an "arms length" approach in respect of day-to-day operational control over SEPA's functions. The relationship between, and respective functions of, the Executive and SEPA are set out in detail in a formal Management Statement.

As noted in my letter last October, Scottish Ministers have powers to direct SEPA. These powers enable Ministers to direct SEPA to exercise the powers already available to the Agency. I firmly believe, however, that Ministers' powers in this regard should be used in only very limited circumstances. This is based on our policy that reliance should be placed on SEPA to use its expertise and judgement on how, and when, to deploy the powers available to it rather than Ministers intervening directly. It is also the case that the use of these powers could well cut across the policy interests of other areas within the Executive. That said, I would not hesitate to direct SEPA if I believed that SEPA's actions were creating a risk to public health, or if SEPA was acting unreasonably in carrying out its functions or failing in its duty to protect the environment.

As you know, SEPA has powers under Part I of the Environmental Protection Act 1990 to take action against any operator who contravenes the conditions in an authorisation. The effectiveness of these powers is illustrated by the enforcement action already taken against Sacone, and the previous owner of the plant, which had the effect of closing the incinerator until SEPA was satisfied that the company had taken the necessary steps to address the problems at the plant. The outcome of this enforcement action is that improvements introduced at the plant should enable the incinerator to achieve now the higher standards of the Waste Incineration Directive that are not due to be introduced for existing incinerators until 2005. If problems persist, SEPA has the option to take further enforcement action or recommend prosecution to the Procurator Fiscal.

SEPA also has specific powers under section 12 of the 1990 Act to enable it to revoke an authorisation at any time, by notice in writing. There is a particular reference in SEPA's enforcement policy to repetitive breaches of authorisation conditions: "Persistent breach of licence conditions will not be tolerated. Required action may be phased in over a reasonable but binding timescale depending upon its importance to the environment and the attitude of the licence holder." One such action perceived as "required" may be revocation, and the appropriateness of that particular action and timing of it, amongst a range of possibilities, would be considered by SEPA against the background of the particular circumstances under investigation.

In summary, I acknowledge there are a number of difficult issues which the problems associated with the Carntyne incinerator have highlighted. One particular issue that has surfaced is the need to ensure that there is an effective interface between the land use planning and environment protection regimes. The study we are proposing will look at this very carefully. On the Carntyne incinerator itself, I have been assured by SEPA that the company's authorisation contains stringent conditions to ensure that the necessary environmental standards are met. I have also been assured that the company is complying with these conditions. My officials and SEPA will continue to monitor the incinerator's operations very closely.

I hope these comments are helpful to the Committee.

Ross Finnie

Minister for Environment and Rural Development

RESPONSE TO THE REPORTER'S PAPER FROM SEPA

28 January 2003

Transport and the Environment Committee: Reporter's Paper on Petition 377 on Polluting Activities in Built up Areas

Further to your letter of 9 January 2003, SEPA welcomes the opportunity to respond to Fiona McLeod MSP's report on the issues raised by petition 377. SEPA has commented on several aspects of the report, and where relevant, referenced the paragraphs in the report.

Introduction

1. The report is a well balanced assessment of the issue and effectiveness of the interface between the statutory planning and environmental protection regimes. In general, SEPA supports the contents and recommendations of the report.

2. There are a number of factual issues (mostly of a non-material nature) that are not strictly correct in the report. I highlight these for completeness:

· paragraph 3: currently the incinerator only burns cattle carcasses (not sheep).

· paragraph 12: the meeting on 23 August 2002 was in SEPA's East Kilbride office.

· paragraph 24: SEPA monitors the operation of incineration plants following the granting of an authorisation under the Environmental Protection Act 1990. Obviously planning permission would have been required to permit the plant to be built, but is not required by statute for SEPA to authorise the operation of the process.

· paragraph 48: SEPA has served 4 enforcement notices on the incinerator at Carntyne. Two were on the previous operator (Westcot Hides), and two on the current operator (Sacone Environmental). At the time of report to the T&E committee, three of these enforcement notices had been complied with (rather than the two stated). The plant was closed in March 2002 due to the fourth enforcement notice. Sacone complied with the requirements of the fourth enforcement notice in mid-December 2002.

Planning and Environmental Impact Assessments

3. With reference to paragraph 20, under the Environmental Assessment (Scotland) Regulations 1988, there was no provision requiring an EIA for animal carcass incineration. A knackery or an incinerator for controlled waste (animal remains are not controlled waste) would have required a screening exercise on whether an EIA was required. Under the revised EIA (Scotland) Regulations 1999, animal remains incineration is now included in Schedule 2 (screening required as to whether EIA necessary).

4. As part of the Policy and Financial Management Review currently underway, SEPA reported on issues with the statutory land use planning and environment protection regulations interface and sought dialogue as to how integration could be improved. Part of this process will require clarification of the respective powers of SEPA, the Executive and Local Authorities, and assess the way in which they are working together to protect Scotland's environment.

5. SEPA has a right to contribute to the consideration of an application by a planning authority, either through statutory consultation (for example, the General Development Procedure (Scotland) Order 1992 (as amended) requires planning authorities to formally consult SEPA on all applications for proposals involving waste management facilities), or by voluntarily making a representation to a planning authority. However, SEPA's contributions can only extend to issues which are material to land use planning. In most cases, issues connected with the environmental regulation of the site are not material to the planning decision as these are controlled by other regulations. In its report to the Scottish Executive, SEPA highlighted that this inability to comment on the planning implications of how the site may be regulated represents a major concern.

6. With reference to the concern raised by paragraph 27, SEPA would welcome any change whereby planning and pollution control applications are submitted simultaneously, allowing better informed decision making, and harmonised applications of conditions and standards and enforcement.

7. The impacts of a proposal on the environment are material considerations in the determination of a planning application (as set out in paragraph 51 of Scottish Planning Policy 1). However, the planning system should not be used to secure objectives that are more properly achieved under other legislation (paragraph 57, SPP1), therefore consideration of specific environmental issues, which are covered by SEPA's regulatory functions, cannot form part of the planning application determination.

8. With reference to the recommendation in paragraph 28, an EIA will normally be undertaken by the applicant and submitted to the planning authority for their consideration prior to a decision. Under Regulation 2(1) SEPA is a "consultation body", and is therefore already a statutory consultee. SEPA is sent a copy of the EIA and may make representations. SEPA may also comment on the findings and methodology of the EIA. SEPA is additionally a statutory consultee when a planning authority has had a request from an applicant for a "scoping opinion" regarding the aspects on which the Environmental Statement should focus. The need for a "scoping opinion" is not statutory but results from a request from the applicant for the local authority's opinion. There is, however, no requirement for a planning authority to consult SEPA on requests for screening opinions (for Schedule 2 developments), that is, whether a EIA should be required for a particular development. There is no requirement for the planning authority to consult the Health Board on any aspect of the EIA.

The disposal of BSE infected cattle

9. With reference to paragraph 23, for Part A and B processes under Environmental Protection Act 1990, Part I, SEPA does not have any statutory power to withhold the granting of an operating licence irrespective of whether planning permission has been granted (again providing the appropriate technology to control emissions has been used). This is different from the Waste Management Licensing Regulations 1994 and Part II of the Act which require planning permission to be granted prior to the granting of the environmental operating licence and highlights differences within environmental protection legislation

10. There are several `grades' of cattle disposed of at sites in Scotland. These include:

· SRM (specified risk material, tissues removed from the human food chain e.g. spinal cord, brains etc). This material can be rendered or incinerated.

· BSE suspects (where a vet suspects BSE is present and puts down the animal for that reason). In Scotland these carcasses are incinerated at a designated site. This incinerator operates to the same 850oC and 2 second residence time standard. The operators of incinerator designated for BSE suspects bid for this work.

· Fallen stock (animals that die or are put down on farm but BSE is not specifically suspected). These carcasses are incinerated.

· OTMS (over 30 month animals, mostly dairy, destroyed as not fit for human consumption). These carcasses can be incinerated or rendered and incinerated.

11. Each animal carcass incinerator in Scotland is authorised by SEPA to burn animal carcasses. Except for one plant, there are no specific conditions relating to which carcasses are permitted to be incinerated at the plant, but there are conditions relating to the operating parameters of the plant and the emissions permitted.

12. The Rural Payments Agency (RPA) contracts incineration and rendering plants to destroy carcasses. The contracts are for specific categories of carcasses collected in specific geographic locations.

13. The Carntyne Plant planning permission granted on appeal by the Scottish Office states in Condition 6 that "no...remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone meal shall be burned at the plant". The Carntyne incinerator is the only plant with such a planning permission condition.

14. With reference to paragraph 40, in current practice, Circular 4/1998, The Use of Conditions in Planning Permissions, sets out a series of tests which planning conditions should meet. One of those tests is that a condition must have the ability to be enforced by the planning authority. Although SEPA is not best placed to comment on the appropriateness of the conditions attached, it is worth reasserting the requirement for planning conditions to meets the tests set out in Government policy.

15. In practice, SEPA does not enforce Condition 6 of the planning permission. SEPA determined that there was no mechanism available to SEPA to enforce this condition. Within the national herd there is known to be about 0.25% suffering from pre-clinical BSE, and some of these carcasses will die of unknown cause (fallen stock) or be destroyed as not fit for human consumption (OTMS). However, where there is no clinical sign of the BSE disease, the only method of detection is laboratory analysis. This analysis currently takes up to 7 days in the UK, and as carcasses are required to be destroyed within 72 hours, the results are not available until after the disposal operation is complete.

16. Therefore, although there is no statutory requirement for SEPA to specifically make provisions for the treatment of BSE infected cattle, SEPA used the precautionary principle (as stated in paragraph 38) to determine the operating parameters at the plant, that is, SEPA assumes there could be BSE contaminated carcasses present, and requires operation of the plant to be adequate to destroy the prion.

17. With reference to paragraph 39, the Spongiform Encephalopathy Advisory Committee (SEAC) determined that operating the incinerator with a minimum temperature in the secondary chamber of 850oC for at least a 2 second residence time should destroy the prion (statement of 7 June 1996). As recommended in paragraph 41, these conditions (850oC for at least a 2 seconds) are required at every animal carcass incinerator in Scotland

18. Although the Reporter states in paragraph 36 that the burning of carcasses prior to receipt of the BSE test results circumvents the planning condition, the actual operation of the plant with regard to environmental protection would be the same if confirmed BSE cases were incinerated at the plant.

19. With reference to paragraph 32, in addition to the policy based on economic considerations, there are practical difficulties with incineration of chilled carcasses.

20. SEPA is not able to comment directly on whether the practices referred to in paragraph 35 with regard to protection of staff from infection with the BSE prion as this is a health and safety issue. However, the Meat and Livestock Commission supervise all handling of carcasses at incineration plants. Additionally, brain stem sampling is only permitted by suitably trained staff (the RPA arranged the training of incinerator operator staff).

21. SEPA welcomes the recommendation in paragraph 46 that all BSE positive test results in Scotland are provided to SEPA subject to further details as to how this arrangement would work in practice and consideration of the resultant resource implications. The test results would enable SEPA to, for example, assess whether the ash and extractive atmospheric emission sampling frequencies are adequate at each plant.

The regulation of incinerators by SEPA

22. Due to residents' concerns and the location of the incinerator, SEPA varied the authorisation in July 2001 (before Sacone started operating the incinerator) to reduce the particulate emission limit from 100 mg/m3 to 50 mg/m3. This is a tighter limit than other animal remains incinerators in Scotland. This limit has been further reduced to 10 mg/m3 in September 2002 as the abatement equipment fitted by Sacone is capable of operating to this lower limit. This reflects the requirements of Section 7(2) of the Act, that plants should be designed and operated to the best available techniques not entailing excessive cost.

23. With reference to paragraphs 50 to 52, SEPA has certain powers within Sections 10 to 14 of the Environmental Protection Act 1990 which it is required to exercise. With specific regard to revocation of an authorisation under Section 12, SEPA has a discretion to revoke authorisations. SEPA is, however, required to exercise this power in accordance with the purpose of the Act and general administrative law principles including the Human Rights Act 1998. This means that SEPA would have to demonstrate that the process cannot be operated within the conditions of the authorisation, that is, it is technically not possible to up-grade the plant to meet the required standard. This is a difficult test to prove. SEPA has therefore served notices on the operator requiring upgrading of the plant to meet the requirements of the authorisation.

24. SEPA is a corporate body set up by section 20 of Environment Act 1995. As an executive non-departmental public body SEPA is accountable to the Scottish Parliament through the Scottish Executive. The Scottish Executive issues a management statement to SEPA which sets out the relationship between SEPA and the Scottish Executive (Scottish Executive Paper 2002/19) and policy priorities to SEPA (Scottish Executive Paper 2002/20). Within the legislative framework the Minister retains powers of direction under individual regimes (under the Environmental Protection Act 1990 sections 7 and 10 contain powers of direction in relation to conditions of authorisation and variation) and more generally under section 40 of the Environment Act 1995. These powers of direction can only be exercised by the Minister for the purpose of the relevant act. These powers of direction do not operate to give the Minister any wider powers than SEPA itself has. It is clear within this framework that the primary responsibility for day to day regulation of the site lies with SEPA.

RESPONSE TO REPORTER'S PAPER FROM COSLA

10 February 2003

Transport and the Environment Committee: Reporter's paper on petition PE 377 on polluting activities in built-up areas

Thank you for your letter of 9 January to Rory Mair, inviting COSLA to make a response on the Reporter's quite thorough paper on petition PE 377. COSLA shares the Committee's practise of not taking a view on specific local issues and we note that the wider issues which may be raised by the petition appear to require early resolution by the Deputy Minister for Social Justice, the Minister for Environment and Rural Development and SEPA. COSLA therefore does not intend to make a response on the paper.

Bob Christie

Head of Policy

REPORT FROM THE EUROPEAN PARLIAMENT PETITIONS COMMITTEE

Report of the fact-finding mission to Scotland. (January 7 - 9 2003)

Members: Felipe Camison

Herbert Bösch

Eurig Wyn.

The decision to send a fact-finding mission of three MEPs to Edinburgh and Glasgow to investigate the allegations contained in the petition submitted by Dorothy Grace Elder was taken with a view to ensuring that the Petitions Committee of the European Parliament might formulate an enlightened judgement on an issue which directly affects a community of some 60,000 people in eastern Glasgow.

The legal environment concerning the Carntyne Incinerator Plant, and the nearby Paterson's Landfill Site is one where European legislation potentially applies.10At the same time the petition concerns matters which are the responsibility of the United Kingdom authorities (both in London, and Edinburgh since devolution) as well as the Glasgow City Council. Moreover, a Scottish regulatory body - the Scottish Environmental Protection Agency (SEPA) - plays a crucial rôle in advising the Scottish Executive on the matter. (Ref: SEPA Management Statement July 2002, sections 1.6, 2.2 & 3.)

Beyond the legal environment lies a compelling human environment, and it was this fact which motivated the Committee on Petitions to take up this case and seek to cooperate with the Scottish Parliament and the Glasgow City Council in order to find a solution to the two distinct issues raised by the petitioner, in the interests of the people of Glasgow's poorest neighbourhoods.

· The Carntyne Incinerator Plant, now owned by Sacone Environment Ltd, was allowed to operate against the wishes of Glasgow City Council in 1996 only following a successful appeal by the previous owners, Wescot Hides Ltd, which was granted by the Scottish Office in London following a Report by Ms J McNair dated January 21st 1998. A number of conditions were nevertheless imposed. The plant incinerates fallen cattle.

· The Paterson Landfill Site, in Greenoakhill, is said to be the largest open landfill site in Europe and it was first developed over fifty years ago. It was most recently granted a Waste Management Licence (ref. WML/W/00036, in June 2000. The licence notably defines which substances the site may accept under Directive 76/464/EEC (List 1 and List 2 substances). Over the years, the Glasgow conurbation has naturally spread and now many thousands of persons are living in close proximity to the site. Health concerns have been raised, and a number of complaints made about the smell emanating from the site.

Members of the Committee visited both locations and conducted extensive discussions with the owners of the incinerator plant, including the company chairman, Mr Fowler and his directors; and at the landfill site, with Mr Paterson and Mr Lindsay the site manager. In both places meetings were both informative and cordial.

At Glasgow Council Chambers a meeting was organised with local councillors representing the communities concerned, presided by the Lord Provost of Glasgow, Mr Alex Mosson. The involvement of the Lord Provost underlined the commitment of the City Council to finding a solution to the problems raised. Representatives from Scottish Water (Trade Effluent Quality Team) and the Greater Glasgow NHS Board were present and responded to questions. A separate meeting took place in the Chambers with the Chairman of SEPA and his colleagues. Both meetings were held in public.

In Edinburgh, at the Scottish Parliament, members met with Margaret Curran MSP, Constituency member for Glasgow Ballieston whose constituency includes the incinerator plant and Robert Brown MSP also from Glasgow. A meeting was also held with the Convenor (Chairman) of the Transport & Environment Committee, Mr Bristow Muldoon and Ms Fiona McLeod the reporter of the committee on the incinerator issue. At the end of the visit, a meeting was organised with Mr Allan Wilson MSP, Deputy Minister for Environment and Rural development who has particular responsibility for the subjects at issue.

Of particular importance for the members of the fact-finding team was the meeting with the local people most affected by the incinerator plant and representatives from the local housing associations and community councils. Members were able to see also the neighbourhood affected by the presence of the incinerator plant and the landfill site, including, as regards the former, the local playing fields and schools, adjacent to the site.

The Carntyne Incinerator Plant

The plant is situated on a narrow strip of land running next to a railway track on one side, designated by the planning authority for light industry. The vicinity was used in the past by the tanning industry but has since been designated for 'improvement' by the city planners. Next to the plant are to be found a picture framing company and other small firms. The incinerator is close to houses and apartment blocks as well as a number of caravans, an old peoples' home, schools and a local hospital. When operating normally the plant functions around the clock on a twenty-four hour basis, day and night.

There is no doubt that in recent years, according to eye-witness accounts, the local residents have been subject to unacceptable levels of exposure to the effects of the incinerator plant which include cattle blood and remains which have been regurgitated by the drainage system as well as the acrid black smoke from the chimney stacks which has deposited a greasy residue over the whole area, not to mention the noise which reaches levels which are intolerable. The transport of carcasses was also done previously in uncovered vehicles at one time when the plant was owned by Wescot Hides Ltd. Now, it would appear at least that all haulage is sealed.

Since the new owners arrived in 1998, they have invested extensively in modernising the incinerator equipment, under pressure from SEPA, which has closed the site on three occasions for failure to comply with certain technical requirements for incineration. On one occasion the plant was closed for more than eleven months. Unsightly waste-pipes for effluent have been replaced and buried, the incineration equipment has been substantially renewed and filters added to the chimney stacks and waste water pipes.

The Chairman, Mr Fowler, informed the members that everything has been done to conform to the new EU Directive 2000/76/EC, which has yet to be put into effect in the UK.

However, the Scottish Office in London granted planning permission originally with a certain number of conditions. Condition number six states "No special waste, clinical waste, remains from animals clinically confirmed or diagnosed as suffering from BSE, tallow or bone meal shall be burned at the plant." It is a proven fact that in the recent period, at the end of 2001 or early in 2002, two BSE infected cattle were in fact burned at the plant. The owners were unaware of this fact and have never been formally told by DEFRA. The way in which tests were conducted and the time it takes for results to be obtained meant that the cattle were burned well-before anyone could have known of their infection with BSE. This is a grave and totally unacceptable situation, especially for the local community but also for the owners of the plant whose employees are entitled to be aware of such a risk. Given the number of cattle being treated in that time period, this level of infection represents 2% of the cattle incinerated at the plant.

It is certainly the case that incineration is the best way to eliminate BSE infected cattle as long as the burn is conducted at the right temperatures and in the right conditions. Incinerators - second chambers - must burn at a temperature no less than 850 degrees to destroy the gas components. At Carntyne, members saw that temperatures in an empty test burn exceeded 900 degrees.

Plants must also have all the requisite filters to control waste water and ash etc.

But, Carntyne is not one of the designated incinerators in the UK to receive BSE infected cattle.

The Carntyne Incinerator Plant does not choose which cattle they burn; these are designated by DEFRA in London through the Rural Payments agency. The East End of Glasgow receives cattle from other parts of Scotland and also from parts of England. The absurdity of transporting dead cattle from the countryside into an urban area, two miles east of Glasgow City centre, has to be seen to be believed. Yet according to the regulatory agency, nothing can be done legally to prevent this. According to the Head of the Glasgow City Council Planning Department, even condition number 6 of the planning agreement would not stand a chance of being upheld in court because of the vagueness of the wording in legal terms. But, as regards the relevance of Article 4 of the EU Waste Directive certain questions must be nevertheless be raised and answers given.

Given the location of the plant and the topography of the site, not only in an urban area but also in a valley, under certain weather conditions, with high pressure prevailing, the thick black smoke is kept in the valley by a climatic lid. Rainfall brings black particles immediately down to earth covering everything. SEPA has recognised in its own enforcement notices that there are problems with the stacks which do not provide good dispersion of the exhaust gases...in all weather conditions. This is an inherently nauseous and unhealthy site for an incinerator plant where the local population just happens to be amongst the poorest in the UK and suffer from many disadvantages in terms of employment, and general health standards. Life is made extremely miserable for a vulnerable community who must suffer such pollution every hour of the day, yet, we are led to believe, they can do nothing about it. That is what we shall see...

Members of the fact-finding mission did not meet anyone in the course of their visit who believed that the incinerator plant should be sited in this densely populated part of the East End of Glasgow which is Carntyne. Even the owners, Sacone Environment Ltd., would be willing to relocate the plant in a more amenable and suitable location where the impact on a local population would be negligible. The City Council, the Scottish Parliament and even the regulator believe that the plant should be situated elsewhere. The deputy Minister for the Environment appeared sympathetic and considered that an urgent solution should be found which involved all parties to the problem. Surprisingly, members felt that rarely had any of the parties met together with the objective of finding a solution to the problem.

Moreover, the local community, including the Councillors, considered that they were inadequately informed by the public authorities about what the incinerator plant was doing; the owners of the plant for their part were not informed about the nature of the cattle they were being contracted to burn.

Greenoakhill Landfill Site (Paterson's)

The maximum amount of controlled waste material, which is allowed on to the site, should not be more than 15,000 tonnes per week or 500,000 tonnes in any year. That makes for a lot of lorry loads. The licence makes provisions for gas management control, environmental monitoring points, capping, management of dangerous substances such as asbestos, liquid waste disposal (which has now ceased since last year) and other items.

The petitioner refers in her petition to the fact that Paterson's is the only "high-level toxic dump within a city boundary anywhere in Scotland" It accepts according to the petitioner cyanide, arsenic, asbestos and mercury amongst many other substances.

The members, in the time available, were not able to verify the extent to which the licence has been properly respected or otherwise. No representations were made by the regulatory authority which implies any lack of respect for the license provisions. The license itself is renewed every four years following a SEPA inspection. The members were informed by the site owner that as of 2004 no more hazardous waste will be accepted on the site, nor waste from car tyres. The future of the dumping of asbestos is still to be determined, though specific safeguards for its disposal already apply. Every sixth load which arrives on site is sampled and sent to SEPA for inspection. When waste has caused problems of smell, which is the principle reason for complaints received, contracts have been terminated, according to the site manager. Tannery waste and blood products are no longer taken.

The owner of the landfill site has invested in turbine generators of which it currently has four, to produce electricity from the gases generated by the landfill. Wells are sunk at different points around the site to extract the gas and 4 megawatts of electricity are generated every day and go into the national grid. It is the gas extraction which has caused complaints, especially when new wells are being drilled. There was also a problem with the assessment of the level of smell from the site and SEPA continues to monitor now that the probes have been properly placed to capture emissions.

The site plans to close by 2015. Restoration of the site is done by infilling and capping and the objective is to recreate an urban woodland.

The site is situated in an area which was formally a quarry. The sides are sandy and the bottom is clay over a rock lining, so it is not therefore lined.

Members were assisted during parts of their visit by Dr Helene Irving of the Greater Glasgow Health Board because the impact on the health of the local community was a key concern of the petitioner. Members were also able to discuss the possible health impact of the landfill site with the Director of Public Health for Glasgow, Dr Harry Burns. He conducted a detailed study on this which was published in November 1999. (Ref. Paper No. 99/136 - 12b of 16/11/1999) He confirms that "much of the waste generated by people living in the West of Scotland is buried in the landfill site at Greenoakhill". Dr Burns defined 'health' as being a result of a range of variables such as economic status, social and physical environment and genetic endowment.

He informed the members of the fact-finding mission that he had found no objective evidence of disease that could be attributed to the presence of, or proximity to the landfill site. However as many live in such a poor environment people do feel at risk. It is not, he considered, appropriate for waste to be dumped- especially in such quantities, in an urban area. He provided some further disturbing information about the overall health of people living in the area affected by the incinerator plant and the landfill site. In particular, as an example he mentioned that men were 2.34 times as likely to die before the age of 65 than the UK average. Infant mortality is twice the national average.

Dr Burns acknowledged that the Paterson's landfill site was being run to the best of the owner's ability. But the size - some 11km.sq. - is an historical "anomaly" making it almost impossible to manage effectively. Noting the human condition involved, Dr Burns said that people are not really being helped to help themselves when they are obliged to live in inadequate housing, without the prospect of work and with a landfill site on their doorstep. Their dignity is being denied in such circumstances.

Dr Burns considered that it would be useful to conduct, under the auspices of the European Commission perhaps, a comparative study on "understanding health". He noted great improvements had been achieved in France, Austria, Spain and Finland but not in Scotland or in the UK, nor in some other EU countries.

Returning to the landfill site, the health study mentions the smell which at times has been breathtaking - something also mentioned by the petitioner. Though it cannot be proved that the smell is a cause of disease it is an undoubted cause for the lack of well-being within the community. Consideration of the use of the site must be conducted in the context of the Scottish Waste Management Strategy currently being undertaken by the authorities.

Recommendations

Carntyne

· The Carntyne Incinerator Plant should be closed as soon as a viable alternative site can be found. The alternative site should not be located in an urban environment but in such a place where the inherent by-products of the incineration process, including the smoke from the stacks and other waste may be disposed of without threatening local communities or causing any harm to the surrounding environment, in line with all relevant EU Directives. The closure is to be considered an urgent priority.

· The Scottish Executive should be invited to consider convening a meeting on the plant closure, to which members of the Scottish Parliament concerned, members of Glasgow City Council and the management of Sacone Environment Limited should be invited. SEPA must be involved in this process in an advisory capacity under the terms of its functions as specified in the SEPA Management Statement.

· The local community must be regularly informed about this process.

· The European Commission is requested to investigate in which way it could contribute to this process, possibly in an advisory capacity but also by means of contributory financial support, having due regard for the relative poverty and social environment of the East End of Glasgow.

Greenoakshill Landfill Site.

· Bearing in mind that for over-riding practical reasons the closure of the landfill site is not an option, additional measures should be envisaged for improving the landscaping around the perimeter of the site. Such landscaping should be designed with regard to further preventing the transmission of dust and nasty smells to the neighbouring community.

· Similarly, greater attention should be brought to bear on the restoration of the landfill site and the replanting of trees and scrubland to generate a more acceptable local environment for residents of the area. Because this is also a matter of enhancing the public health and well-being of this part of Scotland, public funding should be considered for such projects.

SEPA

· Should be given additional powers and the consequent resources to allow it to be more closely involved in the planning process in the context of improved integration of planning and environmental regulations.

Conclusions

Members of the fact-finding mission would like to place on record their thanks to all persons in Scotland who contributed so effectively to the organisation and preparation of the mission. This list includes the Rt.Hon Allan Wilson, deputy Minister for the Environment and Rural Development, the Lord Provost of Glasgow, Mr Alex Mosson, Members of the Scottish Parliament mentioned in this report, Mr Ken Collins, Chairman of SEPA, Mr Alastair Fowler, Chairman of Sacone Environment Ltd, Mr Tom Paterson, owner of Paterson's Landfill Site, Dr Harry Burns & Dr Helene Irving, and to the members of the local community in Carntyne, Gartgraig, Sprinboig, Baillieston & Mount Vernon.

It hopes that the report and its recommendations respond to the request of the petitioner, Ms Dorothy Grace Elder, and to the persons on whose behalf she submitted the petition.

18 February (4th Meeting, Session 1 (2003)) - Oral Evidence

4 March (5th Meeting, Session 1 (2003)) - Written Evidence

SUBMISSION FROM DOROTHY-GRACE ELDER MSP

Carntyne Cattle Incinerator. For March 4 meeting

Following the Committee's meeting on February 18, I wish to thank you sincerely for allowing me to speak. When the Reporter's paper is finalised, I respectfully urged the Committee to:

· Back the call by the European delegation for closure of the cattle incinerator at Carntyne `as an urgent priority' as their report stated. Also, to ensure that the meeting the MEPs requested between interested Parties be arranged immediately.

I think members will agree we cannot possibly ignore the European Parliament. I have met subsequently with campaigners in the East End of Glasgow and they are incredulous and shocked at the ignoring, by Edinburgh, of the Brussels decision. They feel badly let down. I cannot agree that a recommendation should not be made in the T & E committee's finalised report because it is past `practice' by the committee not to do so in a local sense.

This is a national issue in the context of the siting of incinerators, especially cattle incinerators - indeed, it has been shown to be a European issue.

At present, no other cattle incinerator in Europe has been found to be foisted on a heavily built up city area.

But others could be created if people `get away with it' in this severe case in Glasgow. There was one of the concerns when I visited the European Parliament.

No-one knows how many future agricultural crises could happen; we know however that cadavers are piling up in the UK.

The MEPs' Report even suggests that finance might be made available via Europe. Also ignored.

It was a breakthrough move in Scottish European relations when a European delegation was appointed: their committee invested enormous preliminary work over months prior to that delegation's arrival and the work of the Spanish, Austrian and Welsh members on the delegation was warmly welcomed by the people of Glasgow, Glasgow City Council, 12 local community councils and housing associations who had all backed my petition to Europe. Glasgow¹s Lord Provost turned up in person to chair a meeting to aid the European delegation.

Correspondence with T & E Committee

The extraordinary fact about the correspondence from SEPA and Mr. Ross Finnie is that it ignores the unanimous decision for closure made in January 03 in the European Parliament¹s Public Petitions Committee. Mr. Finnie's letter is dated February. His deputy minister, Allan Wilson, met with the European delegation in early January two weeks before their report and their report views him as "sympathetic" to their views. Yet Mr. Finnie has totally bodyswerved the European decision. His letter is approval for continuing to operate the plant.

No part of the European recommendations has been carried out - not even arranging the meeting the MEPs called for. This is shocking.

This puts the Scottish Parliament in the position of defying a statutory committee of the European Parliament. And there's the added embarrassment that, on February 27, the European Parliament¹s President will be addressing our Parliament. It is known that Mr. Cox is rather proud of his members' concern for Glasgow, views it as a marker in closer relations with the Scottish Parliament and has had communications of thanks from people in Glasgow.

Missing Facts

There is no reference in the correspondence or in the Reporter¹s Report that the MEPs stated in January that they were trusting the Scottish Executive and Parliament to carry out their recommendations but, if they did not, they would be "prepared to take this matter to the floor of the European Parliament and to take the legal route". They did not think that necessary at that stage as they expected the Executive and others to start immediate action. No-one anticipated that nothing would be done.

Are we prepared next to see the whole European parliament defied in its efforts to protect our own citizens?

There is no reference to the separate investigation being undertaken at present by the European Commission. The Carntyne case has reached as high as Margot Wallstrom, the European Environment Commissioner, who has written to Bill Miller, MEP, Margaret Curran, MSP and myself confirming an ongoing investigation.

Recommendations

The main recommendations by the European Delegation on petition No 1104/2001 (by DG Elder, MSP) Report of the fact finding mission to Scotland. January 7-9, 2003 (Pursuant to Article 175.3 of the Rules of Procedure) stated:

1. "The Carntyne Incinerator Plant should be closed as soon as a viable alternative site can be found. The closure is to be considered an urgent priority."

2. "The Scottish Executive should be invited to consider convening a meeting on the plant closure, to which members of the Scottish Parliament concerned, members of Glasgow City Council and the management of Sacone Environment should invited."

3. "That the European Commission is requested to investigate in which way it could contribute to this process, possibly in an advisory capacity but also by means of contributory financial support, having due regard for the relative poverty and social environment of the eat End of Glasgow."

No part of the paperwork submitted on February 18 to the T & E Committee including the Reporter's Report mentions that the European Commission is, separately, continuing to investigate. A letter confirming this, from the European Commissioner for the Environment, Margot Wallstrom, was received recently by MEP Bill Miller, MSP Margaret Curran and myself.

Reporter's findings

MSP McLeod has put a lot of work into her Report for which thanks to her and to the committee. It is only points with which I disagree that I have space to highlight, unfortunately!

Under "conclusions", MSP McLeod "welcomes the assurances that have been

given by SEPA and the Executive as to the safeguards which have been put in

place to mitigate the risks imposed by the plant...."

The local community completely rejects these "assurances" and has made it clear they support only closure and backing for the European decision. These "safeguards" are in themselves causing a new problem: excessive noise, 24 hours a day for almost two months - reduced to noise between 7 a.m. and 10 pm only in the last few days, with Glasgow City Council serving an order on the plant. (But it is a 24 hour operation plant so this reduction is temporary)

SEPA had instructed Sacone Environmental to improve the discharge chimneys and filters. The mechanisms for doing so have caused noise the locals describe as "appalling". Before these "improvements" noise had not been a substantial factor: black smoke pollution was.

Families living nearby say their children cannot sleep and the petitioner, Mr. Kayes, says he suffers from sleep deprivation. Yet SEPA is continuing the failed route of seeking "improvements" rather than back closure. Every time, over almost two years, these "improvements" have not worked or have caused extra problems.

Ms McLeod states correctly that "the bottom line for residents of Carntyne is that it is unsatisfactory that a cattle incinerator was ever allowed to be located in a built up area". However, her report seems accepting of the notion that all depends on the operators although she is "mystified" about why the minister does not act. But the European report states: "Life is made really miserable for a vulnerable community who must suffer such pollution every hour of the day yet we are led to believe they can do nothing about it. That is what we shall see...." The European report refers to Council Directives on waste, hazardous waste and on incineration. At that stage, January, 2003, they relied on the common-sense of Scottish politicians to act on their report without the legal stick needing to be wielded but there is little doubt that wield it they will if necessary.

Time and again throughout their visit, the MEPs expressed astonishment at the Scottish attitude of accepting the unacceptable.

Owners say they would move

MSP McLeod states: "The reality of the current situation is that, without the consent of the operator, there would appear to be little prospect of the permanent cessation of the plant". I do not accept that and neither did the European delegation. However, what is not mentioned is that Sacone¹s directors stated in January 2003 in the presence of the MEP delegation and City Councillors that they would be willing to move if found a suitable piece of land. Nor is there mention that the MEPs report said there might be EC help financially. (The owners also stated this to MSP Curran and myself in 2002. I informed SEPA but they ignored this)

The MEPs report confirms: "Members of the fact-finding mission did not meet

anyone in the course of their visit who believed that the incinerator plant

should be sited in this densely populated part of the East End. Even the

owners, Sacone Environmental , would be willing to relocate the plant in a

more amenable and suitable location where the impact on a local population

would be negligible."

"The city council, the Scottish parliament and even the regulator believe

that the plant should be situated elsewhere." "The deputy Minister for the Environment appeared sympathetic and considered that an urgent solution should be found which involved all parties to the problem."

"Surprisingly, members (MEPs)) felt that rarely had any of the parties met together with the objective of finding solution to the problem."

Their recommendations include "the Scottish Executive should be invited to consider convening a meeting on the plant closure, to which members of the Scottish Parliament concerned, members of Glasgow city council and the management of Sacone should be invited" But this meeting has not taken place. Why not?

The local population rejects completely any trust being placed in SEPA, based on several years of negative experience, secrecy and a seeming determination by SEPA to let polluting operators continue no matter how many times they offend. SEPA has no policy of "how many strikes before you are out". Experience shows they continue offering industry chance after chance.

SEPA's Submission

SEPA's submission, as quoted by them to the Minister, is an exercise in absurdity.

The Minister states that SEPA "played an important role in the consideration

of the planning appeal into the Carntyne incinerator, appearing and giving

evidence at the Public Local Inquiry which was held in 1997"

This "important role" was that the environmental watchdog bore heavy responsibility for a cattle incinerator being foisted in an area of 67,000 people next to housing, children¹s playing fields and in the environment of 17 schools, nurseries and a hospital.

The minister confirms that SEPA "had not objected to the planning

application and would only recommend refusal if it thought that its

requirements could not be met, which is not the case here"

Clearly, the requirements have not been met. What sort of statement is that?

· The original owners SEPA permitted to operate, Westcott Hides, had to close after repeated pollution problems and the loss of a cattle contract.

· The present owners, Sacone, have had their plant closed for longer than it has been open because of repeated pollution problems. (It opened in July 2001; was closed by SEPA from October 9 to Christmas, 2001, reopened until further outbreaks of black plume pollution forced SEPA to close them again from March 2002 until the present)

Baillieston MSP Margaret Curran expressed her shock when she found out that SEPA had made no objection - that must have weighed heavily with the original inquiry Reporter.

SEPA stuck to its belief that it should not consider site, only how a plant would operate: thus, this plant was allowed to be created amid a huge residential area and, moreover, in a small valley which traps pollution plumes as the MEPs pointed out.

The minister agrees that planning and SEPA's role should be more closely linked in future: but meanwhile the people of the East End suffer from what it is now admitted needs to be changed.

Frankly, in this case, SEPA hardly needed legislation: common-sense shows anyone the site was entirely wrong.

Throughout, MSPs and councillors, as well as local residents have found that SEPA has leaned to the side of industry, not the concerns of the public, especially in this area of the worst ill health rates in Britain.

MSP McLeod mentions the "weakness" of the Planning condition 6 imposed by the Inquiry Reporter. It is weak because it is capable of dual interpretation.

However, it was written at a time when it was not anticipated that a certain category of cattle would ever be investigated: fallen stock. These animals which die on farms have traditionally been buried on farms and death causes never investigated fully. It was not until July 2001 that the European Commission demanded that all member states must investigate these animals to discover how many might have contracted BSE. This involves transportation (paid for by taxpayers) to incinerators and brain stem cell samples being taken.

These are the dead cattle being taken to Carntyne. This category is officially "at high risk" of BSE according to DEFRA documentation. Under the previous owners, only OTMS cattle had been incinerated, a lower risk category although East End people stress their area is unsuited for any animal incineration.

Planning Clause 6 might equally have been interpreted for what some believe it was intended: to prevent animals at risk of BSE entering the Carntyne plant.

SEPA have chosen to interpret on the side of business and ignore any factor of public protection in that clause: they use a play on words, interpreting that it¹s all right to discover some cattle had BSE AFTER they enter the plant as long as they were not diagnosed in advance. Yet DEFRA and Scottish Executive documentation make it clear that BSE WILL be discovered in fallen stock, to some degree - not "perhaps" but WILL be discovered.

As MSP McLeod's report shows, two animals incinerated at Carntyne have tested positive for BSE. The incinerator directors stated that they had not been informed of this by official sources. Why not? It remains that this incinerator does not have a licence to burn BSE - SEPA informed me that they did not alter the licence when it was transferred from the previous operators. It is claimed that an incinerator which was not created for handling BSE can do so. Then why do we have special incinerators for BSE in Britain?

They are able to get away with incinerating BSE animals because the environmental regulator and the minister allows them to hide behind that play on words.

Once more, the attitude of SEPA calls into question their fitness to be the environmental regulator and that fitness has been questioned by their own staff in a survey by Glasgow University, where many staff did not believe that SEPA was doing a proper job.

I am grateful to this committee for the care and concern they have shown throughout, their willingness to listen, and am especially grateful to the Convener for going out of his way to meet with and assist the MEPs with their inquiry.

However, I fear that, in media terms, this saga might now be presented to look as if the European Parliament cared and the Scottish Parliament did not. Untrue - but there are sufficient facts concerning the ignoring of the European recommendations to build a tale on.

Again, I urge backing for the European recommendations for closure.

Dorothy-Grace Elder MSP

LETTER FROM THE DEPUTY MINISTER FOR ENVIRONMENT AND RURAL DEVELOPMENT TO DOROTHY-GRACE ELDER MSP

24 February 2003

Thank you for your email of 12 February to the Minister for Environment and Rural Development about the Carntyne cattle Incinerator. I am replying because this subject falls within my Ministerial responsibilities.

Like you, I am anxious that the long standing problems associated with the Carntyne incinerator are addressed quickly. As you know, the issues are complex, involving a number of different agencies and interests. I have asked officials to consider these matters as soon as possible, including the recommendations of the European Parliament's Petitions Committee following the visit to Carntyne earlier this year.

I am sure you will agree that it is important that the various points are considered thoroughly in this case, and that an ill-considered solution is one to be avoided. I am, nevertheless, well aware that the issues need to be addressed quickly, and it is on that basis that we are considering the various options.

Allan Wilson

Deputy Minister for Environment and Rural Development

4 march meeting 2003, columns 4216 and 4217

ANNEX C: OTHER WRITTEN EVIDENCE

PETITION PE 377 BY MICHAEL KAYES ON POLLUTING ACTIVITIES IN BUILT UP AREAS

To the Scottish Parliament:

We the undersigned declare that we are extremely concerned that there is an over concentration of polluting operations, such as toxic dumping and cattle incineration in the East End of Glasgow, and that these operations constitute a significant Health Hazard to the local population.

The Petitioners therefore request that the Scottish Parliament carries out an urgent investigation into the practice of toxic dumping, cattle incineration and other polluting activities in built-up areas, with particular reference to the dumping and other disposals currently taking place in the East End of Glasgow.

Michael Kayes

49 Westerburn Street

Glasgow G32 6AT

7 June 2001

Background: stop dumping on the East End of Glasgow

The people of a large part of the East End of Glasgow have their lives disrupted by and shadowed by the fact that every possible dangerous material is either dumped on the East End or processed there.

On one side there, there is Paterson's Dump, which is licensed by SEPA to take up to 500'000 tonnes of waste a year and is believed to be the highest level of toxic dump within an urban boundary in Scotland. It is permitted to take 27 poisons and chemicals, including arsenic and cyanide.

A public health department report in 1999 confirmed what locals had suffered for years and still suffer: "that smells are, at times, literally breathtaking". Some 4'00 lorry loads go through the residential areas around the dump every year. The dump is currently under four enforcement notices and one report to the fiscal but is still allowed to operate.

The people are very concerned about the attitude of SEPA, the Scottish Environment Protection Agency, which is accused of secrecy and failure to tackle local problems.

Cow incinerator

The local people are outraged that SEPA, without consulting them, have now given a license for a cow incinerator to re-open at Carntyne, also in the East End. It will take more than 200 animal carcasses a week, hauled into residential area on lorries. The plant is not permitted to incinerate cattle with BSE but it is admitted that tests have to conducted by beheading cattle carcasses. So there is no absolute certainty guaranteed by SEPA or anyone else that a BSE infected animal will not arrive without knowledge that it had BSE until tests are conducted. The furnaces are not up to a degree to destroy BSE contaminants and it is admitted that a dead cow will have to be stored for a limited time until tests come back. This plant is for "fallen animals" and locals wonder why as many as 200 a week have died of natural causes or accidents and where they will come from.

This plant closed in autumn, 2001. Conditions before then are described by locals who have photographic and video evidence, to include:

· Black plumes of smoke rising from the burning flesh of decapitated cattle;

· Ash falling on houses and cars,

· Blood running down a local street from dead, injured cattle being delivered on trucks

· Noxious smells

· Hideous sights for children to endure: e.g. blood in the streets.

Houses are within 60 metres of the incinerator plus a caravan park containing many families.

The cow burner is now within new ownership. The new owner faced a public meeting at which locals rejected all promises that the plant would be better run in future. They have heard such stuff before. They have no faith in SEPA and believe once the plant is re-opened, they will suffer and SEPA will be weak in answering complaints, on past experience.

The people are particularly angry at SEPA for granting a licence and for not consulting with them fully in advance.

Glasgow City Council had refused planning permission. This was won only on appeal with a Reporter appointed.

The locals claim that refusal showed the Council's concern and that SEPA did not need to grant a licence, knowing the misery inflicted on the area when the plant operated previously.

As a mark of the locals' desperation, one man, Michael Kayes, even offered to buy out the new owner and to give him £230,000 for the plant, so that Mr Kayes could destroy the furnace and end the problem for ever. This offer was refused, the new owner, Mr. Batty, stating that he now had a licence from SEPA.

They want a full health inquiry. The previous inquiry by Greater Glasgow Health Board's Public Health Department had to be limited largely to hospital statistics for lack of resources. But the report indicated against more new housing being built near the dump. Local people claim that their area has too many clusters of people suffering from severe diseases and they want all this investigated fully.

LETTER FROM THE REPORTER TO THE DEPUTY MINISTER FOR SOCIAL JUSTICE

2 October 2002

Petition 377: Polluting Activities in Built-Up Areas

In light of a recent development, I am writing to request further information on planning procedures in connection with Petition PE 377 by Michael Kayes on polluting activities in built up areas. Firstly, I would wish to thank you for the extensive nature of your response to my previous letter on this issue and for responding promptly to the Committee's questions.

You will recall that one of the concerns raised in the petition is the possibility that animals suffering from BSE are being burned at an incinerator near built-up areas at Carntyne in Glasgow.

In a recent letter, the Minister for Environment and Rural Development confirmed that animals which have been burnt at the plant have later been diagnosed as suffering from BSE. I attach this letter for your information.

Condition six of the planning permission for the incinerator states that animals clinically confirmed or diagnosed as suffering from BSE should not be burned at the plant. Clearly, in cases where positive tests are recorded, planning conditions are being breached as infected animals are being incinerated at a plant which does not possess the necessary licence.

As I understand it, once planning permission has been granted, it is for Glasgow City Council, and SEPA in terms of its regulatory functions, to ensure that all conditions associated with the operation of the plant are complied with and to take any necessary action if this does not occur.

However, you will be aware that SEPA has not specifically prevented the plant incinerating carcasses which are later confirmed or diagnosed as suffering from BSE, as incineration of BSE contaminated carcasses is not a separately identified prescribed process under the Environmental Protection Regulation. Consequently, it would seem that responsibility for enforcing the planning condition relating to animals infected with BSE lies with the local authority.

Citing the situation in Carntyne as an example, could you let me know what action local authorities are required to take when planning conditions are circumvented and what steps local authorities can take to prevent planning conditions being broken on future occasions. In addition, please can you inform me of the circumstances in which planning permissions may be revoked.

I should like the Committee to consider the petition and the associated issues at its meeting on 30 October. To this end I should be grateful if you would respond by 22 October.

I should be grateful if you would copy your response to the assistant clerk to the Committee, Rosalind Wheeler (e-mail: rosalind.wheeler@scottish.parliament.uk).

I have copied this letter to Dorothy-Grace Elder MSP.

LETTER FROM THE DEPUTY MINISTER FOR SOCIAL JUSTICE TO THE REPORTER

18 October 2002

Thank you for your letter of 2 October about the Transport and the Environment Committee's consideration of Petition PE 377 by Michael Kayes, concerning the operation of the animal waste incinerator at Carntyne, Glasgow.

You draw attention to a recent letter from the Minister for Environment and Rural Development which indicates that 2 of the bovine carcases delivered to the Carntyne plant for incineration were subsequently found to have tested positive for BSE. As you correctly point out, condition 6 attached to the planning permissionfor this plant requires that, inter alia, no remains from animals clinically confirmed or diagnised as suffering from BSE shall be burned at the plant. On the basis of the information supplied to you by the Minister for Environment and Rural Development it would, therefore, appear that this condition has been breached.

As you note, once planning permission has been granted it is for the planning authority, in this case Glasgow City Council, to ensure that all planning conditions are complied with and, if they are not, to take any action they consider necessary. A planning authority can take enforcement action against a party who is failing to comply with a condition, or they can take action to revoke planning permission. If planning permission is revoked the developer might seek compensation from the authority.

But it is solely for the planning authority to judge what action would be appropriate given the circumstances of each individual case. I am afraid, therefore, that I cannot generalise as to the circumstances in which planning permissions may be revoked.

Also it would be inappropriate for me to offer any comment on the merits of this particular case. Parties who are served with enforcement notices or revocation orders, have the right of appeal against their terms to the Scottish Ministers. As I am sure you will appreciate, any comment could prejudice the Scottish Ministers' possible future role in determining any such appeal.

Hugh Henry

ANNEX D: LIST OF UNPRINTED MEMORANDA

Letter from the Scottish Office Minister for Agriculture, the Environment and Fisheries to David Marshall MP - January 1999

Parliamentary question (S1W-32632) from the Reporter and its response from the Deputy Minister for Environment and Rural Development


Footnotes

1 Letter from the Minister for Environment and Rural Development, 1 February 2003 (reproduced at Annex B)

2 Letter from SEPA, 28 January 2003 (reproduced at Annex B)

3 Official Report, 18 December 2002, Col 3978-9

4 European Parliament Petitions Committee Report of the fact-finding mission to Scotland, January 7 - 9 2003, (reproduced at Annex B)

5 Letter from SEPA, 28 January 2003 (reproduced at Annex B)

6 Letter from SEPA, 23 May 2002 (reproduced at Annex B)

7 European Parliament Petitions Committee Report of the fact-finding mission to Scotland, January 7 - 9 2003, (reproduced at Annex B)

8 European Parliament Petitions Committee Report of the fact-finding mission to Scotland, January 7 - 9 2003, (reproduced at Annex B)

9 Official Report, 18 December 2002, Col 3978-9

10 Council Directive 75/442/EEC on waste as amended by Directive 91/156/EEC & Council Directive 91/689/EEC on hazardous waste. Regulation (EEC) 1774/2002. Directive 2000/76/EC on the incineration of waste. Directive 94/67/EC on the incineration of hazardous waste. Directive 99/30/EC. Directive 96/62/EC

 

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